JUDGMENT Piyush Mathur, J. 1. This First Appeal has been preferred by the Plaintiff against the Judgment passed by the 2nd Additional District Judge, Gwalior in Civil Suit No. 13-A/01, on Date 05.02.2002, whereby the Suit instituted by the Plaintiff, seeking compensation on account of alleged failure of Sterilization Operation has been dismissed by the Trial Court upon finding that the negligence as alleged by the Plaintiff against the Surgeon has not been proved. 2. The Plaintiff-Laxmi Devi happens to be a house-wife and her husband Omprakash is a Tailor, by occupation who have been blessed with three sons and four daughters and the Plaintiff had undergone a Tubectomy (T.T.) Operation at the E.S.I.S. General Hospital, Gwalior wherein Dr. Abha Gupta (Respondent No. 4) had performed the operation on Date 29.04.1994 and the Plaintiff was discharged from the Hospital on Date 05.05.1994, but inspite of the Sterilization Operation, the Plaintiff had exhibited symptoms of pregnancy, when on Date 23.05.1995 she contacted Respondents No. 3 & 4 at the Hospital, but it was expressed by the Respondents that the Hospital or Surgeon is not responsible, as there are some chances of failure of the Sterilization Operation. 3. The Plaintiff gave birth to a baby boy on Date 01.11.1995, whereafter a Suit for compensation was filed against the State Authority, E.S.I.S. Hospital and Dr. Abha Gupta for a total compensation sum of Rs. 2,78,000/- (classified under various Heads) and the Trial Court had permitted the Plaintiff and the Defendants to lead their respective evidence on the issue framed during the trial and upon conclusion of the trial, the Court has found that the Plaintiff has failed to prove that Respondents No. 3 & 4 were negligent in discharge of their duties or there was such negligence, committed during the course of the operation that the Operating Surgeon could be held responsible for payment of the compensation. The Trial Court has found that the Plaintiff was not entitled for payment of the compensation under any of the heads claimed by the Plaintiff. Against this dismissal of Suit, the Plaintiff has preferred this First Appeal before this Court as an indigent person and by Order Dated 29.08.2006, this Court had allowed the Appellant to prosecute this Appeal as an indigent person. 4. Against this dismissal of Suit, the Plaintiff has preferred this First Appeal before this Court as an indigent person and by Order Dated 29.08.2006, this Court had allowed the Appellant to prosecute this Appeal as an indigent person. 4. Shri Pramod Gohadkar Learned Counsel for the Appellant submits that the Plaintiff was already blessed with three sons and four daughters and her husband and the Plaintiff were not inclined to have another child, therefore they have consulted Respondents No. 3 & 4 who had assured that the Plaintiff would never conceive or beget a child after the T.T. Operation and based upon that confident representation of Respondents No. 3 & 4, the Plaintiff had undergone surgery but due to the negligence of the Surgeon-Respondent No. 4, the Plaintiff had conceived and gave birth to a baby boy. Shri Gohadkar submits that had the Operating Surgeon been diligent in her duties in performing the desired operation, there would have been no occasion for the Plaintiff to have conceived again when all of the Sterilization Operation are described to be successful by the Operating Surgeon, more so when this fact was admitted by Dr. Abha Gupta during her examination as a witness before the Trial Court that she has performed all the operations successfully, therefore the Counsel submits that it should be treated to be a case of gross negligence on the part of Respondent No. 4 and suitable compensation may be Awarded to the Plaintiff. 5. Shri Newaskar Learned Deputy Government Advocate for the State/Respondents No. 1 to 3 submits that the Public Health and Family Welfare Planning Department of the State of M.P. provide facilities of Sterilization Operation with a view to control the future population by offering operation facilities to those persons, who intend to adopt sterilization method and all such patients are informed and duly notified, much before the operation that there is every possibility of failure of the operation. Shri Newaskar submits that the system of performing Sterilization Operation in this country is done by such method which include tying up of fallopian tube by the Surgeon at the time of operation and at times the knot made of the fallopian tube gets open naturally or due to unknown reasons and for this accident, the Surgeon and the Government could not be held responsible principally or for burdening itself by vicarious responsibility of its employee. Shri Newaskar submits that the Consent Form (Ex. D/1) contains material description about the nature of the Sterilization Operation as also about the chances of its failure and since the Plaintiff has consented for undergoing operation under those conditions, the respondents shall not be held responsible for any of their act and/or omissions. He further submits that the Plaintiff-Laxmi Devi (PW/1) had admitted in her statement that she had signed on the Consent Form, whereafter she cannot complain about the negligence of the Operating Surgeon or the Government. Shri Newaskar relied upon a Judgment of the Supreme Court reported as (2005) 7 SCC 1 State of Punjab v. Shiv Ram and Ors. to demonstrate that the Supreme Court has observed that the method of sterilization is not hundred percent safe and secure and inspite of the operation being successfully performed and without any negligence on the part of the respondents, a sterilized woman can become pregnant due to several causes. Shri Newaskar has also cited a Division Bench Judgment of this Court reported as 2008 (4) MPLJ 126 Radha Ujjainkar v. State of M.P. and Ors. to strengthen the same submission and lastly he relied upon another Judgment of this Court reported as 2007 (4) MPLJ 516 Chaman Bai v. State of M.P. to demonstrate that when the lady had conceived pregnancy she could have approached the Operating Surgeon or Hospital and by signing consent letter she could have opted for Medical Termination of her Pregnancy. On these grounds, the Learned Deputy Government Advocate submits that the Trial Court has rightly dismissed the Suit of the Plaintiff. 6. Shri R.K. Sharma, Learned Counsel for the Respondent No. 4-Dr. Abha Gupta has argued that the Plaintiff was apprised about the nature of the operation as also about the possibilities of the failure of the operation much before performing the operation upon her and since the Plaintiff had signed the Consent Form fully knowing about the consequences of the operation, there exist no ground, on the basis of which the respondents could be held responsible for payment of compensation. He further submits that the system of sterilization involves knotting of the fallopian tube and there had been occasions when due to the natural cause or physical cause, the patient had conceived pregnancy, inspite of previous Sterilization Operation and since the system of Sterilization Operation itself is not faultless, the Operating Surgeon could not be treated to be negligent merely upon conceiving pregnancy by the patient. Shri R.K. Sharma submits that when the Plaintiff had realized that she had conceived a child inspite of the operation, she should have contacted the respondents for undergoing an operation (Medical Termination of Pregnancy) and since the Plaintiff had not opted for Medical Termination of Pregnancy she would not be entitled for compensation. For substantiating all these submissions, Shri Sharma has relied upon various Judgments of the Supreme Court right from the land mark Judgment of Jacob Mathew v. State of Punjab and Anr. reported as AIR 2005 SC 3180 , State of Punjab v. Shiv Ram and Ors. reported as AIR 2005 SC 3280 , Martin F. D'souza v. Mohd. Ishfaq (2009) 1 SCC (Cri.) 958 and the latest Judgment of the Supreme Court reported as AIR 2010 SC 1050 Kusum Sharma and Ors. v. Batra Hospital and Medical Research Centre and Ors. to demonstrate that the negligence of the Operating Surgeon alone is not the only factor which has to be considered by the Court, but the gross negligence has to be seen for punishing the Operating Surgeon as the Surgeon undertakes great risk for himself/herself while operating a person for a particular surgery. Shri Sharma has read over several paragraphs of these Judgments to demonstrate that the Supreme Court has laid down guidelines while dealing with the case of negligence of the Doctors that these should be analyzed only in the background of the guidelines provided in the Judgment of the Supreme Court. Shri Sharma conclude by submitting that since the Plaintiff has failed to establish the "gross negligence" on the part of Respondent No. 4, therefore the Trial Court has rightly dismissed her Suit and the Plaintiff is not entitled for payment of any amount of compensation as the negligence of the Operating Surgeon has not been proved. 7. Shri Sharma conclude by submitting that since the Plaintiff has failed to establish the "gross negligence" on the part of Respondent No. 4, therefore the Trial Court has rightly dismissed her Suit and the Plaintiff is not entitled for payment of any amount of compensation as the negligence of the Operating Surgeon has not been proved. 7. I have heard Shri Pramod Gohadkar, Learned Counsel for the Appellant, Shri Praveen Newaskar, Learned Deputy Government Advocate for the State/Respondents No. 1 to 3, Shri R.K. Sharma, Learned Counsel for the Respondent No. 4 and perused the record of the case. 8. A close scrutiny of the entire oral and documentary evidence adduced by the litigating parties reveal that when the Plaintiff subjected herself to the Sterilization Operation at E.S.I.S. Hospital, she was required to sign on a document described as a Consent Letter, where the Plaintiff has voluntarily agreed for the terms and conditions, prescribed in the Consent-cum-Declaration Form. This Consent Form categorically contains that the Plaintiff has agreed for subjecting herself to the Sterilization Operation and she was duly explained about the consequence as also the chances of failure of the operation and the risk involved in the operation. When the Plaintiff was examined as PW-1, she had admitted that she had signed on the Consent Letter but has refused to accept the suggestion that the contents of the Consent Letter were either understood by her or were read over by some person or respondents to her, however the evidence reveal that the primary duty of the respondents in apprising the patient about the nature of the operation and the possible failure of the operation was duly discharged even before performing the operation on the patient. Dr. Abha Gupta (DW/1) who performed the Sterilization Operation had categorically stated in her statement that she has orally informed the patient (Plaintiff) that there are certain chances of failure of the operation and if after the operation, she faces some problem in her mensural cycle, at any point of time, then she should immediately contact and consult the Doctor, but the Plaintiff never contacted or complained about the change of mensural cycle. This goes to clearly establish that the respondents had taken adequate precaution before conducting Sterilization Operation and on this count it cannot be even presumed that the respondents were negligent in not apprising the patient about the nature and consequences of the operation. 9. The surgical intervention in Sterilization Operation was undertaken under General Anesthesia but it was not a surgery over any part or organ of the human body as in Sterilization Operation the right and left fallopian tubes are closed and they are not completely cut which can always have a possibility of opening of the knot of fallopian tube for facilitating spermetozoa to grow as embryo into the womb/ovary. The Operating Surgeon Dr. Abha Gupta while describing nature of surgery has demonstrated in her statement that since the fallopian tubes are closed by tying them from outside, there exist every possibility of opening of the knot, which may result in conception of the pregnancy by a lady although the ratio of reported failure of the operation is very minimal but the fact remains that the Sterilization Operation is not treated amongst surgical community, to be hundred percent successful on account of variety of physical factors and the natural circumstances. Therefore in view of the medical and surgical aspect of the matter, it is difficult for this Court to even presume that the Operating Surgeon was negligent in performing her duties of conducting Sterilization Operation upon the Plaintiff and if the closure of the fallopian tube has resulted in opening of the knot, the same can not be classified as "negligence" or "gross negligence" as the same appears to be a subsequent development beyond the control of the Operating Surgeon and for the accidental opening of the knot of the fallopian tube, the Operating Surgeon could not be held guilty of committing negligence, much less gross negligence. 10. The Supreme Court while dealing with the jurisprudential aspect of negligence has thoroughly examined the role of the medical practitioner while performing surgical intervention upon a patient and has laid down certain guidelines in its celebrated Judgment reported as Jacob Mathew v. State of Punjab (2005) 6 SCC 1 and the conclusion drawn by the Supreme Court in its Judgment are quoted herein below; 48. We sum up our conclusions 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) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. 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. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. (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. (4) The test for determining medical negligence as laid down in Bolam case WLR at p.586 holds good in its applicability in India. (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. (6) The word "gross" has not been used in Section 304A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be "gross". The expression "rash or negligent act" as occurring in Section 304A IPC has to be read as qualified by the word "grossly". (6) The word "gross" has not been used in Section 304A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be "gross". The expression "rash or negligent act" as occurring in Section 304A IPC has to be read as qualified by the word "grossly". (7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. (8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence. 11. While placing reliance on the Judgment of Jacob Mathew (Supra), the Supreme Court has examined subsequent cases where in its Judgment reported as (2005) 7 SCC 1 State of Punjab v. Shiv Ram and Ors., the Court has observed that if a lady conceive pregnancy after Sterilization Operation and do not opt for Medical Termination of Pregnancy, the wife or the husband looses their right to claim compensation for the maintenance and up-bringing of such child. The relevant paragraphs No. 25 to 31 of this Judgment are quoted herein below: 25. We are, therefore, clearly of the opinion that merely because a woman having undergone a sterilisation 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 Bolam's test. 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 Bolam's 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. 26. The cause of failure of the sterilisation 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 resterilisation. 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 sterilisation operation. (See Law of Medical Negligence and Compensation by R.K. Bag, 2nd Edn., p.139) 27. Mrs K. Sarada Devi, the learned Counsel appearing for the plaintiff-respondents placed reliance on a two-Judge Bench decision of this Court in State of Haryana v. Santra wherein this Court has upheld the decree awarding damages for medical negligence on account of the lady having given birth to an unwanted child on account of failure of sterilisation operation. The case is clearly distinguishable and cannot be said to be laying down any law of universal application. The finding of fact arrived at therein was that the lady had offered herself for complete sterilisation and not for partial operation and, therefore, both her fallopian tubes should have been operated upon. It was found as a matter of fact that only the right fallopian tube was operated upon and the left fallopian tube was left untouched. She was issued a certificate that her operation was successful and she was assured that she would not conceive a child in future. It was in these circumstances, that a case of medical negligence was found and a decree for compensation in tort was held justified. The case thus proceeds on its own facts. 28. She was issued a certificate that her operation was successful and she was assured that she would not conceive a child in future. It was in these circumstances, that a case of medical negligence was found and a decree for compensation in tort was held justified. The case thus proceeds on its own facts. 28. The methods of sterilisation so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilised woman can become pregnant due to natural causes. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. A reference to the provisions of the Medical Termination of Pregnancy Act, 1971 is apposite. Section 3 thereof permits termination of pregnancy by a registered medical practitioner, notwithstanding anything contained in the Penal Code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy. Explanation II- appended to Sub-section (2) of Section 3 provides: Explanation II.- Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. 29. And that provides, under the law, a valid and legal ground for termination of pregnancy. If the woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971. 30. 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 childbirth. 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 the sterilisation 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. 31. Having gathered the knowledge of conception in spite of having undergone the sterilisation 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. 31. For the foregoing reasons, we are of the opinion that the judgments and the decrees passed by the High Court and the courts below cannot be sustained. The trial court has proceeded to pass a decree of damages in favour of the plaintiff-respondents solely on the ground that in spite of the plaintiff Respondent 2 having undergone a sterilisation operation, she became pregnant. No finding has been arrived at that will hold the operating surgeon or its employer - the State, liable for damages either in contract or in tort. The error committed by the trial court, though pointed out to the first appellate court and the High Court, has been overlooked. The appeal has, therefore, to be allowed and the judgment and decree under appeal have to be set aside. 12. The issue of failure of Sterilization Operation has straightaway been analyzed by the Supreme Court in its Judgment reported as (2005) 7 SCC 22 State of Haryana v. Raj Rani, wherein the Supreme Court has observed that the Doctor cannot be held responsible for the failure of the Sterilization Operation as the same depend upon a variety of factors, which would be beyond the control of a Doctor. The relevant paragraph of Judgment is quoted herein below: 3. A three-Judge Bench of this Court has held in State of Punjab v. Shiv Ramthat childbirth in spite of a sterilisation operation can occur due to negligence of the doctor in performance of the operation, or due 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 recognised the percentage of failure of the sterilisation 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. Several textbooks on medical negligence have recognised the percentage of failure of the sterilisation 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 recognised 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. The decrees cannot, therefore, be upheld. 13. It goes without saying that the success of an operation depend upon the competence and experience of the Surgeon/Doctor and the effect of the treatment/surgery is experienced by the person on whom the surgical intervention is made and when the treatment or the surgery fails, a natural reaction appears in the shape of a dissatisfaction or complaint against the operating Surgeon/ Doctor. The Supreme Court while dealing with a variety of such new dimensions of the "negligence" has observed in its recent Judgment reported as (2009) 3 SCC 1 Martin F. D'souza v. Mohd. Ishfaq and the relevant paragraphs No. 32 to 40 of this Judgment are quoted herein below: 32. In Halsbury's Laws of England the degree of skill and care required by a medical practitioner is stated as follows: 35. Degree of skill and care required.- The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men. Deviation from normal practice is not necessarily evidence of negligence. Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care. 33. Eckersley v. Binnie summarised the Bolamtest in the following words: From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of a polymath and prophet. 34. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation, vide Achutrao Haribhau Khodwa v. State of Maharashtra or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade. 35. There is a tendency to confuse a reasonable person with an error-free person. An error of judgment may or may not be negligent. It depends on the nature of the error. 36. 35. There is a tendency to confuse a reasonable person with an error-free person. An error of judgment may or may not be negligent. It depends on the nature of the error. 36. It is not enough to show that there is a body of competent professional opinion which considers that the decision of the accused professional was a wrong decision, provided there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. As Lord Clyde stated in Hunter v. Hanley: In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men.... The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.... 37. The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time. 38. The higher the acuteness in an emergency and the higher the complication, the more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and has to choose the lesser evil. The doctor is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case but a doctor cannot be penalised if he adopts the former procedure, even if it results in a failure. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in charge of the patient if the patient is not in a position to give consent before adopting a given procedure. 39. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in charge of the patient if the patient is not in a position to give consent before adopting a given procedure. 39. There may be a few cases where an exceptionally brilliant doctor performs an operation or prescribes a treatment which has never been tried before to save the life of a patient when no known method of treatment is available. If the patient dies or suffers some serious harm, should the doctor be held liable? In our opinion he should not. Science advances by experimentation, but experiments sometimes end in failure e.g. the operation on the Iranian twin sisters who were joined at the head since birth, or the first heart transplant by Dr. Barnard in South Africa. However, in such cases it is advisable for the doctor to explain the situation to the patient and take his written consent. 40. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse. 14. The sum and substance of the issue of negligence, which arose for the consideration, lead this Court to an irresistible conclusion that the negligence on the part of the treating Doctor or Operating Surgeon has to be necessarily established as falling under one such category of "negligence" which can be classified as 'Gross Negligence' because it is expected from the Professional Medical Doctors and Surgeon that they would perform their duty well and upto the best of their ability on being professionally trained in their respective specialities and since in the present case there exist no negligence in performing the Sterilization Operation upon the Plaintiff, it would not be justified to Award any compensation. The arguments advanced on behalf of the Learned Counsel for the Respondents and all the Judgments cited by them speak out in single rhythm that in absence of the culpable negligence, no Doctor/Surgeon could be penalized or declared guilty of committing negligence. 15. The arguments advanced on behalf of the Learned Counsel for the Respondents and all the Judgments cited by them speak out in single rhythm that in absence of the culpable negligence, no Doctor/Surgeon could be penalized or declared guilty of committing negligence. 15. Therefore in view of the aforesaid factual and legal discussion, this Court find that the Plaintiff/Appellant has miserably failed to establish negligence on the part of the Operating Surgeon or the other Respondents, in performing the Sterilization Operation and as such none of the Respondents could be held responsible for any act or omissions, which could warrant imposition of costs upon them for either performing Sterilization Operation or for committing any dereliction of duty. This Court find that the Trial Court has rightly dismissed the Suit of the Plaintiff therefore, the Appeal is dismissed. However there shall be no order as to costs.