JUDGMENT Sanjay Karol, J .-Plaintiff’s suit for recovery of Rs.5,00,000/- as compensation on account of failure of sterlization operation allegedly due to medical negligence on the part of the doctors of the State stands dismissed. The said judgment and decree dated 16th July, 2002 passed by the District Judge, Bilaspur, H.P. in Civil Suit No.8 of 1999 titled as Smt. Bimla Devi Vs. State of H.P. and others has been assailed by the plaintiff. 2. The plaintiff filed a suit under Order 33 Rule 1 C.P.C. claiming compensation of Rs. 5,00,000/-alleging that: (i) She is resident of village Rajpura and married to Sh. Babu Ram. After giving birth to two children she and her husband decided to undergo sterlization operation; (ii) At the instance of the Chief Medical Officer she got herself operated for tubectomy on 7th January, 1985 in Primary Health Centre, Markand. The operation was carried out by Dr. Inder Singh, Block Medical Officer, Markand. Certificate of operation bearing No. 5666 was issued. (iii) After about 2 ½ years she conceived a child and gave birth to a female child. This proved that either the operation was not done or “some other vein was cut” by the doctor while performing the operation. (iv) To ensure no further pregnancy, the Medical Officer suggested her husband to undergo vasectomy operation which was conduced by the doctor on 29th January, 1989 in terms of certificate No. 1828. (v) In spite of the same she again conceived a child which she delivered in December, 1993. The aforesaid facts were evident to prove that the operation was conducted negligently and that the doctors had neither any knowledge nor special skills to conduct the operation. The failure of the operation caused mental shock, agony, pain, torture, harassment and physically weakened the plaintiff which was a direct result of the rash and negligent actions of the doctors. Her husband, Sh. Babu Ram filed a Civil Writ Petition No. 1275 of 1993 which was dismissed by this Court vide order dated 24th December, 1996 with liberty to file a Civil Suit. She served a notice dated 18th August, 1997 under Section 80 C.P.C. and in the absence of any response she filed the instant suit. She pleaded that the period for pursuing the civil writ petition be accounted for, for the purposes of computing the period of limitation. She served a notice dated 18th August, 1997 under Section 80 C.P.C. and in the absence of any response she filed the instant suit. She pleaded that the period for pursuing the civil writ petition be accounted for, for the purposes of computing the period of limitation. The plaintiff was permitted by the court to sue as an indigent person. 3. The defendant-State filed a written statement, inter alia, taking preliminary objection that the suit was barred by limitation. On merits, negligence or rashness on the part of the doctor who carried out the operation was denied. It was specifically denied that during the operation any vein was cut. It was explained that 100% success rate of family planning operation cannot be granted and the fallopian tube might have joined spontaneously which perhaps resulted in the conception after a period of 2 ½ years of the operation. The fact that no conception took place within the said period itself proved that the operation was successful. As per the medical jurisprudence the reason for the pregnancy after tubecotomy operation could be attributed to; “(a) The woman is already pregnant at the time of operation. (b) The surgical errors made, usually by confusing an other structure with the fallopian tubes. 4 (c). The ends of fallopian tube reconnect spontaneously (anastomos) (d) The fistulas (abnormal opening) develop in the tube allowing the sperms to meet” As per internationally established and acknowledged principles, even if both the tubes are properly legated 1 to 20 per thousand women may conceive in future. The failure rate is 0.4% which is mainly due to spontaneous reanastomosis. 4. The competence and the experience of Dr. Inder Singh who carried out the operation was reaffirmed and explained that the failure of the operation may not necessarily be due to the negligence of the doctor. Had the plaintiff brought the factum of the pregnancy to the notice of the health department, the same could have been terminated under the Medical Termination Act which is an alternative to avoid the birth of unwanted child due to the failure of sterlization operation or otherwise. 5. With regard to the vasectomy operation conducted upon the plaintiff’s husband it was so stated that Dr. M.L. Gupta, B.M.O, Markand carried out the operation. The patient was advised to have a seminal examination after three months of operation to know the success of the operation. 5. With regard to the vasectomy operation conducted upon the plaintiff’s husband it was so stated that Dr. M.L. Gupta, B.M.O, Markand carried out the operation. The patient was advised to have a seminal examination after three months of operation to know the success of the operation. The patient was also informed that at least 20 to 30 ejaculations were necessary before the seminal examination is found to be negative and the patient was advised to use condom etc. until two consecutive sperm counts were found to be negative. The husband failed to carry out the instructions and had he followed the instructions the success or the failure of the operation could have been detected at an early stage and the birth of the second child in December, 1993 could have been avoided. As per medical jurisprudence, the failure rate of the vasectomy operation is up to 0.15% to 1%. Based on the pleadings of the parties, the Court framed the following issues: 6. According to him the findings on issue No.1 cannot be interfered with as the State has not filed any appeal. Per contra, Mr. Anil Jaswal, learned Deputy Advocate General for the State has argued that the finding on issue No.1 be set aside as they are perverse, without any reason and material on record. The reliance on the decision of the apex Court, referred to in the impugned judgment, is misplaced. 7. I have heard learned counsel for the parties and also perused the record. The burden to prove the negligence is on the plaintiff. The plaintiff stepped into the witness box as PW-1. According to her on 7th January, 1985 she was operated upon by Dr. Inder Singh for tubecotomy in the hospital at Markand and was issued a certificate (Ext.PA), but, however, after the period of 2 ½ years she conceived and gave birth to a female child. Thereafter she visited the hospital when the doctor advised her to get her husband operated as this would ensure no further conception. Her husband was operated for vasectomy on 29th January, 1989. But, even thereafter another child (male) was conceived and born on 10th January, 1993. After the birth of two children it was so learnt that the operation failed due to the negligence of the doctors. Her husband was operated for vasectomy on 29th January, 1989. But, even thereafter another child (male) was conceived and born on 10th January, 1993. After the birth of two children it was so learnt that the operation failed due to the negligence of the doctors. The writ petition was filed in the High Court claiming damages which was dismissed on 24th December, 1996 and accordingly after serving a notice under Section 80 C.P.C. she filed the instant suit. She is poor and facing hardship in bringing up her children. 8. I have heard learned counsel for the parties and also perused the record. The burden to prove the negligence is on the plaintiff. The plaintiff stepped into the witness box as PW-1. According to her on 7th January, 1985 she was operated upon by Dr. Inder Singh for tubecotomy in the hospital at Markand and was issued a certificate (Ext.PA), but, however, after the period of 2 ½ years she conceived and gave birth to a female child. Thereafter she visited the hospital when the doctor advised her to get her husband operated as this would ensure no further conception. Her husband was operated for vasectomy on 29th January, 1989. But, even thereafter another child (male) was conceived and born on 10th January, 1993. After the birth of two children it was so learnt that the operation failed due to the negligence of the doctors. The writ petition was filed in the High Court claiming damages which was dismissed on 24th December, 1996 and accordingly after serving a notice under Section 80 C.P.C. she filed the instant suit. She is poor and facing hardship in bringing up her children. However, during cross-examination she could not remember the name of the doctor who performed the operation of her husband and admitted that the said doctor was not arrayed as a party in the suit. She admitted having appended her thumb impression to the consent form (Ext.DA). She admitted that she get herself operated of her own will as she had not desired any further children. Prior to her operation the doctor had explained the precautions which were required to be taken by her. Though she denied that the doctor was not negligent but, however, has shown ignorance of the fact that the child may have been conceived due to the joining of the fallopian tube. Prior to her operation the doctor had explained the precautions which were required to be taken by her. Though she denied that the doctor was not negligent but, however, has shown ignorance of the fact that the child may have been conceived due to the joining of the fallopian tube. According to her she learnt about the failure of the operation when she conceived the child. She admitted that even after the operation of her husband she had come to know of her conception. Dr. Inder Singh (DW-1) has proved on record that he operated the plaintiff and had fully apprised her of the consequences of the operation and the precautions which were required to be taken by her. The operation was carried out by him after she voluntarily filled up the consent form. Having learnt about the conception the plaintiff did not visit the hospital. He has deposed about his experience and explained the percentage, basis and the reasons for the failure of the family planning operation. 9. Apart from the bald statement of the plaintiff there is nothing on record to prove the doctor’s negligence. The plaintiff did not get herself medically examined to show that the operation carried out by the doctor could be faulted for not being in accordance with the settled and established procedures of medical jurisprudence. It is not the plaintiff’s case that having learnt about her conception she had approached the doctor for termination and that the doctor dissuaded her. The plaintiff, in my view, had been extremely negligent herself in bringing the factum of her conception to the notice of the doctor. That apart after her operation the plaintiff conceived twice. At no point of time this fact was brought to the notice of the authorities. The writ petition was filed by her husband and not by her. Having learnt about the failure of the operation she did not take any further steps of getting herself operated again which only proves the fact that either she had been negligent or was desirous of further having children. Importantly, her husband even though arrayed as defendant No.4 did not step into the witness box. The reason for the failure of the operation carried upon him has not been proved on record. In a claim for damages as a torturous liability, the negligence is necessarily required to be proved and established. 10. Importantly, her husband even though arrayed as defendant No.4 did not step into the witness box. The reason for the failure of the operation carried upon him has not been proved on record. In a claim for damages as a torturous liability, the negligence is necessarily required to be proved and established. 10. The Apex Court in State of Haryana and others Vs. Raj Rani (2005) 7 SCC 22 has held as under: “Child birth in spite of a sterilization operation can occur due to negligence of the doctor in performance of the operation, or de to certain natural causes such as spontaneous recanalisation. The doctor can be held liable only in cases where the failure of the operation is attributable to his negligence and not otherwise. Several textbooks on medical negligence have recognized the percentage of failure of the sterlization operation due to natural causes to be varying between 0.3% to 7% depending on the techniques or method chosen for performing the surgery out of the several prevalent and acceptable ones in medical science. The fallopian tubes which are cut and sealed may reunite and the woman may conceive though the surgery was performed by a proficient doctor successfully by adopting a technique recognized by medical science. Thus, the pregnancy can be for reasons dehors any negligence of the surgeon. In the absence of proof of negligence, the surgeon cannot be held liable to pay compensation. Then the question of the State being held vicariously liable also would not arise”. (Emphasis Supplied) 11. In Jacob Mathew V. State of Punjab and another (2005 (6), the apex Court has held; “No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur. Else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur. At least three weighty considerations can be pointed out which any forum trying the issue of medical negligence in any jurisdiction must keep in mind. These are: (i) that legal and disciplinary procedures should be properly founded on firm, moral and scientific grounds; (ii) that patients will be better served if the real causes of harm are properly identified and appropriately acted upon; and (iii) that many incidents involve a contribution from more than one person, and the tendency is to blame the last identifiable element in the chain of causation, the person holding the “smoking gun”. The jurisprudential concept of negligence defies any precise definition. In current forensic speech, negligence has three meanings. They are; (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and (iii) the breach of a duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but any one of them does not necessarily exclude the other meanings. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would not do. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence, as recognized are three; “duty”, “breach” and “resulting damage”, that is to say; (1) the existence of a duty to take care, which is owed by the defendant to the complainant; (2) the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and (3) damage, which is both casually connected with such breach and recognized by the law, has been suffered by the complainant. If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence.” (Emphasis Supplied) 12. In State of Punjab Vs. If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence.” (Emphasis Supplied) 12. In State of Punjab Vs. Shiv Ram and others (2005) 7 SCC 1, while dealing with the case of failure of sterlization operation allegedly caused due to the negligence of the doctor the court held that merely because the woman having undergone sterlization operation becomes pregnant and thereafter delivers a child the operating surgeon or his employer cannot be held liable on account of unwanted pregnancy or unwanted child. Relying upon the authentic text of various studies and books on medical jurisprudence, the court held as under: 11. Dealing with reliability of the sterilization procedures performed and commonly employed by the gynecologists, the text book states (at p.621):- Reliability 13. The only sterilization procedures in the female which are both satisfactory and reliable are: resection or destruction of a portion of both fallopian tubes; and hysterectomy. No method, however, is absolutely reliable and pregnancy is reported after subtotal and total hysterectomy, and even after hysterectomy with bilateral salpingectomy. The explanation of these extremely rare cases is a persisting communication between the ovary or tube and the vaginal vault. Even when tubal occlusion operations are competently performed and all technical precautions are taken, intrauterine pregnancy occurs subsequently in 0.3 per cent of cases. This is because an ovum gains access to spermatozoa through a recanalized inner segment of the tube. There is clinical impression that tubal resection operations are more likely to fail when they are carried out at the time of caesarean section than at any other time. The fact that they occasionally fail at any time has led many gynaecologists to replace the term sterilization by "tubal ligation" or "tubal resection" in talking to the patient and in all records. This has real merit from the medicolegal standpoint." 13. In The Essentials of Contraceptive Technology, written by four doctors and published by Center for Communication Programs, The Johns Hopkins School of Public Health in July, 1997, certain questions and answers are stated. Questions 5 and 6 and their answers, which are relevant for our purpose, read as under: "5. Will female sterilization stop working after a time? Does a woman who had a sterilization procedure ever have to worry about getting pregnant again? Generally, no. Female sterilization should be considered permanent. Questions 5 and 6 and their answers, which are relevant for our purpose, read as under: "5. Will female sterilization stop working after a time? Does a woman who had a sterilization procedure ever have to worry about getting pregnant again? Generally, no. Female sterilization should be considered permanent. Failure rates are probably higher than previously thought however. A major new US study found that the risk of pregnancy within 10 years after sterilization is about 1.8 per 100 women -about 1 in every 55 women. The risk of sterilization failure is greater for younger women because they are more fertile than older women. Also, some methods of blocking the tubes work better than others. Methods that cut away part of each tube work better than spring clips or bipolar electro coagulation (electric current). Effectiveness also depends on the skill of the provider. The same US study found that 1 of every 3 pregnancies after sterilization was ectopic. If a woman who has had sterilization ever thinks that she is pregnant or has an ectopic pregnancy, she should seek help right away. 6. Pregnancy after female sterilization is rare but why does it happen at all? The most common reason is that the woman was already pregnant at the time of sterilization. Pregnancy also can occur if the provider confused another structure in the body with the fallopian tubes and blocked or cut the wrong place. In other case pregnancy results because clips on the tubes come open, because the ends of the tubes grow back together, or because abnormal openings develop in the tube, allowing sperm and egg to meet." 23. In Thake v Morris , [1986] 1 All ER 497 (CA) the claim for damages was founded on contract and not in torts. The Court of Appeal firmly rejected the possibility of an enforceable warranty. Neill L J said: "The reasonable man would have expected the defendant to exercise all the proper skill and care of a surgeon in that speciality: he would not have expected the defendant to give a guarantee of 100% success." 24. Nourse L J said: "of all sciences medicine is one of the least exact. In my view, a doctor cannot be objectively regarded as guaranteeing the success of any operation or treatment unless he says as much in clear and unequivocal terms." 25. Nourse L J said: "of all sciences medicine is one of the least exact. In my view, a doctor cannot be objectively regarded as guaranteeing the success of any operation or treatment unless he says as much in clear and unequivocal terms." 25. We are, therefore, clearly of the opinion that merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing the surgery. The proof of negligence shall have to satisfy Bolams test. So also, the surgeon cannot be held liable in contract unless the plaintiff alleges and proves that the surgeon had assured 100 % exclusion of pregnancy after the surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. As noted in various decisions which we have referred to hereinabove, ordinarily a surgeon does not offer such guarantee.” (Emphasis Supplied) 14. The Bolam’s test affirmed by the apex court in Jacob Mathew (Supra) was reaffirmed as under “7. The relevant principles culled out from the case of Jacob Mathew (supra) read as under: (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: duty, breach and resulting damage. (2) A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: duty, breach and resulting damage. (2) A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. (3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. 15. This Court has further held in Jacob Mathews case (supra):- "Accident during the course of medical or surgical treatment has a wider meaning. Ordinarily, an accident means an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated (See, Blacks Law Dictionary, 7th Edition). Care has to be taken to see that the result of an accident which is exculpatory may not persuade the human mind to confuse it with the consequence of negligence." (Emphasis supplied). 16. Care has to be taken to see that the result of an accident which is exculpatory may not persuade the human mind to confuse it with the consequence of negligence." (Emphasis supplied). 16. In Cholan Roadways Ltd. v. G. Thirugnanasambandam (2005(3) SCC 241), the Apex Court has held as under:- “The general purport of the words res ipsa loquitur is that the accident “speaks for itself” or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Once the said doctrine is found to be applicable the burden of proof would shift on the delinquent.” 17. The Apex Court in Savita Garg (SMT) Vs. Director, National Heart Institute (2004) 8 SCC 56 has held that once a claim petition is filed and the complainant has sufficiently discharged the initial burden that the doctor was negligent in treating the patient and as a result of such negligence the patient died, then in that case the burden lies on the hospital and the doctor concerned who treated the patient to show that there was no negligence involved in the treatment. In the instant case, in my considered view, the plaintiff miserably failed in showing that the doctor had been even prima facie negligent. The doctor has proved through his statement that he had informed the plaintiff of the consequences and the precautions which she was required to be taken after the operation. The plaintiff voluntarily agreed for the operation. In my view, the doctor took reasonable care and caution while operating the plaintiff. It is not a case where to fulfill the family planning target, the operation was carried out by the State doctor either under duress or misrepresentation. He acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art. In his statement the doctor has explained the fact that the failure of such family planning operation cannot be ruled out and as per the studies the same is to the extent of 0.4% to 1%. The Apex Court in Vinitha Ashok (SMT) Vs. In his statement the doctor has explained the fact that the failure of such family planning operation cannot be ruled out and as per the studies the same is to the extent of 0.4% to 1%. The Apex Court in Vinitha Ashok (SMT) Vs. Lakshmi Hospital and others (2001) 8 SCC 731 has held that the doctor would be liable for negligence in respect of the diagnosis and treatment in spite of a body of professional opinion approving his conduct where it has not been established to the court’s satisfaction that such opinion relied upon is reasonable or responsible. Further, if it can be demonstrated that the professional opinion is not capable of withstanding the logical analysis, the court would be entitled to hold that the body of opinion is not reasonable or responsible. 18. That the case of failure of sterlization can be ascertained from laparoscopic inspection as has been acknowledged by the apex Court in Shiv Ram (supra) as under: 26. The cause of failure of sterilization operation may be obtained from laparoscopic inspection of the uterine tubes, or by x-ray examination, or by pathological examination of the materials removed at a subsequent operation of resterilization. The discrepancy between operation notes and the result of x-ray films in respect of the number of rings or clips or nylon sutures used for occlusion of the tubes, will lead to logical inference of negligence on the part of the gynaecologist in case of failure of sterilization operation. (See: Law of Medical Negligence and Compensation by R.K. Bag, Second Edition, p.139) In the present case no such opinion was proved on record. In State of Haryana and others Vs. Santra (SMT) (2000) 5 SCC 182 while dealing with a case of a lady who had conceived after her operation it was found that only her right fallopian tube was operated upon and the left one was left untouched. It was held that the doctor concerned had acted most negligently. The court further held that negligence is a “tort”. Every doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. This is what is known as “implied undertaking” by a member of the medical profession that he would use a fair, reasonable and competent degree of skill. The court further held that negligence is a “tort”. Every doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. This is what is known as “implied undertaking” by a member of the medical profession that he would use a fair, reasonable and competent degree of skill. The court directed the State to pay compensation for the birth of an unwanted child born to a poor lady which resulted into creation of additional financial burden on the mother on account of the negligence of the doctor who performed sterlization operation. The aforesaid decision was based on the facts which are not similar in the present case. The judgment was passed on the basis of proven fact of medical negligence. In the present case, there is nothing on record to show that the operation was carried out contrary to the established practice with reasonable degree of care and skill. Dr. Inder Singh (DW-1) has sufficiently explained the method applied by him for carrying out the operation. He has deposed that there are two fallopian tubes and both of them are to be operated. While operating, both the tubes are to be caught with an instrument and both the ends are to be crushed and tied then the portion which is held with an instrument is cut and left separated. Nothing is applied on the cut ends. That this procedure was not adopted by him is not the case of the plaintiff. 19. In Spring Meadows Hospital and another Vs. Harjol Ahluwalia through K.S. Ahluwalia and another (1998) 4 SCC 39, the Apex Court while dealing with a case where the doctor in charge had delegated the responsibility to another person who had administered a wrong drug which resulted into the death of a minor child, held as under: “Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor. 20. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor. 20. Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anaesthetic will frequently lead to the imposition of liability and in some situations even the principle of res ipsa loquitur can be applied. Even delegation of responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent where he delegates the responsibility to his junior with the knowledge that the junior was incapable of performing of his duties properly.” (Emphasis supplied) 21. In the present case, however, the facts are totally different and there is nothing on record to prima facie to show that the principle of res ipsa loquitur could be invoked. In Achutrao Haribhau Khodwa and others Vs. State of Maharashtra and others (1996) 2 SCC 634, the court was dealing with the case where the doctor who had performed the operation, had left a mop inside the abdomen/body of the patient which resulted into her death. It was in these circumstances the court invoked the doctrine of res ipsa loquitur and even in the absence of any other proof held the doctor liable for the negligence and the State vicariously liable for the acts of the doctor. 22. The court held as under: “A medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor. The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. But in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would maintainable”. (Emphasis Supplied) 23. In the present case the facts are not the same hence, the ratio is not applicable. In Jay Laxmi Salt Works (P) Ltd. Vs. State of Gujarat (1994) 4 SCC 1 the court was dealing with the case where the property of the appellant had been damaged due to flooding of the area which was the direct act of negligence of the officials of the State, the court held; “17 Therefore the computation for purposes of limitation under Article 36 could commence either from the date when malfeasance, misfeasance or non-feasance occurred or from the date when the damage took place or where claim is lodged within period allowed by law and the damage is ascertained then from the date the claim is rejected. It is the improper performance of duty or arbitrary action of the authorities in not accepting the claim when damage was found by the official Committee to have taken place”. 24. This Court in RSA. No 24 of 1996 titled as Abida Begam Vs. It is the improper performance of duty or arbitrary action of the authorities in not accepting the claim when damage was found by the official Committee to have taken place”. 24. This Court in RSA. No 24 of 1996 titled as Abida Begam Vs. State of H.P. and another decided on 19th October, 2007 has held that negligence is the breach of a duty caused by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do and further a simple lack of care, an error of judgment or an accident, is not a proof of negligence of medical profession. The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed. 25. The doctor can be held liable only in cases where the failure of the operation is attributable to his negligence and not otherwise. Several textbooks on medical negligence have recognized the percentage of failure of the sterilization operation due to natural causes to be varying between 0.3% to 7% depending on the techniques or method chosen for performing the surgery out of the several prevalent and acceptable ones in medical science. The fallopian tubes which are cut and sealed may reunite and the woman may conceive though the surgery was performed by a proficient doctor successfully by adopting a technique recognized by medical science. Thus, the pregnancy can be for reasons dehors any negligence of the surgeon. In the absence of proof of negligence, the surgeon cannot be held liable to pay compensation. Then the question of the State being held vicariously liable also would not arise. For the aforesaid reasons it cannot be said that the plaintiff has been able to prove the fact that Dr. In the absence of proof of negligence, the surgeon cannot be held liable to pay compensation. Then the question of the State being held vicariously liable also would not arise. For the aforesaid reasons it cannot be said that the plaintiff has been able to prove the fact that Dr. Inder Singh had been negligent in carrying out the tubecoto my operation of the plaintiff. 26. Considering the entire material on record, there is nothing on record to show and prove that the doctors have been negligent in carrying out the operation performed on the plaintiff on 12.3.1984. In the instant case, no negligence has been found. The principle of res ipsa loquitur also cannot be made applicable. 27. The findings on issue No.1 are reversed as the court below has wrongly held that the principle of res ipsa loquitur would apply. The said finding can be interfered with keeping in view the provisions of Order 41 Rule 33 C.P.C. In the present case the plaint does not disclose the date of the cause of action. In fact the para pertaining to the cause of action is missing. The cause of action in the cases of failure of medical operation would arise with the conception of the child. In Shiv Ram (Supra), the Apex Court has held that merely because the woman having undergone sterlization operation becomes pregnant and thereafter delivers a child the operating surgeon or his employer cannot be held liable on account of unwanted pregnancy or unwanted child. 28. The family planning operation was carried out on 7th January, 1985. The first child was conceived and delivered after a period of 2 ½ years. The second child was born on 10th January, 1993. The plaintiff herein was not pursuing the matter with any of the authorities. The fact was not even brought to their notice till the filing of the writ petition by her husband which was eventually dismissed. At no point in time the State acknowledged or accepted the liability. Therefore the limitation would not be extended. The benefit of Section 14 of the Limitation Act cannot be extended as the plaintiff had not filed any legal proceeding before any judicial authority. 29. Therefore, it cannot be said that the court below has erred in coming to the conclusion that the plaintiff’s suit was barred by limitation. 30. Therefore, the appeal is consequently dismissed.