ORDER : Rajesh H. Shukla, J. Present appeal has been admitted on the following substantial questions of law: (a) Whether in the facts and circumstances of the case the First Appellate Court committed error in interpreting post mortem report exhibit 45? (b) Whether in the facts and circumstances of the case the First Appellate Court committed error in applying principle of Res Ipsa Loquitur? 2. The facts of the case briefly summarised are that, respondent No.1 - original plaintiff filed Special Civil Suit No. 101 of 2001 before Court of Civil Judge (Senior Division), Dhoraji claiming compensation of Rs. 3,00,000/- for medical negligence in performing the family planning operation resulting in death of wife of appellant No.1 Prabhaben. It is contended that death of the deceased wife Prabhaben was caused due to negligence in performance of the said operation by the doctors and the compensation has been claimed on different grounds like love and affection as well as loss of affection suffered by the children. It is stated that, on 23.02.1993, at Government Hospital at village Moti Marad, Taluka: Dhoraji, the deceased wife Prabhaben was operated upon for aforesaid operation of family planning. However, she succumbed to death due to negligence in administering anesthesia for which suit came to be filed. However, said suit was dismissed by the trial Court on the ground that negligence of defendant no.2 - doctor is not proved and defendants are not liable for the death and sufficient care and caution was taken. It is also observed that cause of death of deceased Prabhaben is due to vasovagal shock. However on the basis of the evidence the negligence was not accepted. Against the said impugned judgment and order, First Appeal No. 1568 of 2002 came to be preferred before the High Court, which was transferred to the District Court and re-numbered as Regular Civil Appeal No. 173 of 2005. The Presiding Officer, Fast Track Court, Gondal Camp at Dhoraji, allowed the appeal and judgment and decree of the trial Court were set aside and the plaintiff was held to be entitled for recovery of Rs. 3,00,000/- towards the compensation. The lower Appellate Court has, while appreciating the material and evidence, discussed at length with regard to the medical negligence and has specifically observed referring to the evidence that deceased died due to vasovagal shock as reflected in Exh.45. It was also observed that Dr. 3,00,000/- towards the compensation. The lower Appellate Court has, while appreciating the material and evidence, discussed at length with regard to the medical negligence and has specifically observed referring to the evidence that deceased died due to vasovagal shock as reflected in Exh.45. It was also observed that Dr. Trivedi was not having the degree of expert and skillfulness, who administered the anesthesia. It was also observed that while performing the operation at the initial stage, the deceased died due to dose of anesthesia which can be said to be negligence in performance of operation. It is also observed that, "Doctor has not given tested dose of anesthesia prior to give full dose and thereby it is maltreatment without successful degree in the particular branch and thereby proper care which is required to be taken by doctor is not performed which itself established negligence of Dr. Trivedi." Further, it is observed that, "There is no documentary evidence that what type of dose was administered which is also suggests the negligence of Dr. Trivedi. Doctor Trivedi failed to perform operation for which he was appointed to follow procedure and without his branch for which practice he registered under Medical Council Rules he has practiced as anesthetist, however, he was not having any degree for the said practice which itself is negligence and recklessness of doctor." Reference is also made to a book of Dr. N.J.Modi on Medical Jurisprudence that an anesthetist should be duly qualified man and he should always administer a generally accepted anesthetic after his examining the heart, urine, etc. of the patient." As it can be seen from the evidence on record, reference is made to the Bombay Medical Council Act which defines the Anesthetist. Similarly there is a discussion on this aspect referring to the judgment of this Court reported in GLR 1996 P. 342 as well as the judgment of the Apex Court reported in (2009) 2 SCC 218 in the case of Nazim Institute of Medical Sciences v. Prasanth S. Dhananka & Ors. for the purpose of considering the medical negligence. The P.M. report is at Exh.46 and Forensic Laboratory Report is at Exh.47. The testimony of Dr. Trivedi is at Exh. 61. The cause of death as stated in Exh. 41 is vasovagal shock which is also evident from the P.M. Report Exh. 45. The notes regarding pre-investigation are at Exh. for the purpose of considering the medical negligence. The P.M. report is at Exh.46 and Forensic Laboratory Report is at Exh.47. The testimony of Dr. Trivedi is at Exh. 61. The cause of death as stated in Exh. 41 is vasovagal shock which is also evident from the P.M. Report Exh. 45. The notes regarding pre-investigation are at Exh. 49 and 50 which clearly establishes that Dr. Trivedi has administered the anesthesia and he has also admitted the said fact in his cross-examination. It is in background of these facts the submissions are now required to be considered for deciding the present Second Appeal. 3. Learned AGP Ms. Pathak has referred to both the judgments and tried to submit that Dr. Trivedi was a seasoned doctor and had performed many operations which has been discussed by the trial Court. She has pointedly referred to the observations made on page 26, 27, 28 that the allegation levelled by the plaintiff that doctor has not taken due care and caution as the Prabhaben was given does of the medicines and injections more than what is required resulting in convulsion and later on death of the deceased is not believed or accepted. She pointedly referred to this discussion and emphasised that as observed in this judgment also the doctor should normally treat the patient as human being and the doctor is a life saver, but he is not God, nor he is a magician. She emphasised that miracles do take place and every such lapse is not necessarily negligence and some times the operation may not be successful as legally it is accepted that there are chances of failure. She, therefore, submitted that the judgment of the trial Court is just and proper and the lower Appellate Court has failed to appreciate the evidence and has erroneously reversed the findings of the trial Court and therefore the present Appeal may be allowed. 4. Learned Advocate Mr. Majmudar has referred to the papers including the P.M.Report Exh. 45 as well as notes of the treatment Exh. 49 and 50 and also other papers and submitted that the probable cause of death as stated is, "could have died due to cardiac arrest due to vasovagal shock." He, therefore, submitted that this itself suggests that admittedly deceased died due to dose of anesthesia administered by Dr. Trivedi who is not an anesthetist. 49 and 50 and also other papers and submitted that the probable cause of death as stated is, "could have died due to cardiac arrest due to vasovagal shock." He, therefore, submitted that this itself suggests that admittedly deceased died due to dose of anesthesia administered by Dr. Trivedi who is not an anesthetist. He submitted that before performing such operation doctor should take all required care and caution including the various tests and dose of anesthesia and only qualified anesthetist can administer the dose of anesthesia. He referred to the definition given in the Medical Council Act and submitted that Dr. Trivedi who administered the anesthesia was not a qualified anesthetist even though he proceeded to administer the anesthesia without administration of test dose of anesthesia. He submitted that this itself would be sufficient to establish the medical negligence. 5. In rejoinder, learned AGP has also referred to the proforma which is normally filled to investigate the cause of death and she pointedly referred to the aspect of Anesthesia in column No.8 where it has been stated that presence of Anesthetist is not required for this procedure. She, therefore, submitted that it cannot be said to be negligence. She also tried to submit that in such Government Hospital at the distant area anesthetist may not be available for such operation. She, therefore, submitted that the present second appeal may be allowed. 6. In view of the rival submissions, it is required to be considered whether the present Second Appeal can be entertained or not. 7. As discussed, the moot question which is required to be considered is whether it could be said to be negligence which would entitle the respondents for compensation or whether sufficient care was taken and the deceased died due to vasovagal shock and not as a result of negligence. The admitted fact as discussed above is that Dr. Trivedi has administered the anesthesia though he was not qualified according to the Medical Council Rules. Further, there is no evidence with regard to the type of anesthesia administered. The deceased has died as stated in the P.M. Report due to vasovagal shock which could be the consequence of mistake in administering anesthesia or the dose thereof. Assuming that for such Family Planning Operation in a District or Taluka level, an anesthetist may not be available and the local doctor who is performing the operation like Dr. The deceased has died as stated in the P.M. Report due to vasovagal shock which could be the consequence of mistake in administering anesthesia or the dose thereof. Assuming that for such Family Planning Operation in a District or Taluka level, an anesthetist may not be available and the local doctor who is performing the operation like Dr. Trivedi is administering the anesthesia, still it requires precaution like, at least making of note about the relevant history or date as to the medicines which are given to the patient which would help in considering dose of anesthesia or the type of anesthesia. Further, there is nothing to suggest that for such kind of operation anesthesia could be administered by other doctor who is not a qualified anesthetist. Therefore, as rightly observed, Doctor Trivedi who is not an anesthetist has administered anesthesia itself would be medical negligence as he was not having qualification for the same. Further, as a medical officer, Dr. Trivedi should have been more conscious and aware about the fact that when he is not qualified, what would be the consequence and therefore he is expected to act with reasonable care and caution when he does not have qualification in particular branch. As a medical officer he would be aware that it is only the anesthetist who can administer the dose of anesthesia. He would have recorded the details and only anesthetist would be permitted to administer anesthesia before he could start surgery or operation. 8. The papers, particularly, the investigation note Exh.49 and 50 read with P.M.Note would clearly suggest that the cause of death is due to vasovagal shock and it is also evident that before commencement of surgery the deceased died which would imply that it is only on account of some lapse in administering the anesthesia which led to the death as a result of vasovagal shock. The proforma which is to be used while investigating the cause of death after the operation is also produced. The field experience of Dr. Trivedi has been referred as, 'he is expert of performance of many such operations' but referring to the anesthesia in clause 8, which specifically provides as under: 8. Anesthesia: 1. a. ...... b. Details of the anesthesia used :before operation by muscular c. Anesthetist's name : Presence of anesthetist is not required for this procedure. The field experience of Dr. Trivedi has been referred as, 'he is expert of performance of many such operations' but referring to the anesthesia in clause 8, which specifically provides as under: 8. Anesthesia: 1. a. ...... b. Details of the anesthesia used :before operation by muscular c. Anesthetist's name : Presence of anesthetist is not required for this procedure. Post operative complications, which refers to the sign and symptoms, wherein also it has been stated that, "patient developed spasms of all the four limbs which lasted for 15 to 20 seconds followed by stoppage of heart and respiration. Treatment given as per enclosed sheet No.2 and cause of death is shown as 'cardiac arrest', meaning thereby, this cardiac arrest has taken place before the operation could be performed. 9. It is in this background, the observations made by the Hon'ble Apex Court in a judgment in the case of Jacob Mathew v. State of Punjab & Anr. reported in AIR 2005 SC 3180 is required to be considered. In this judgment the Hon'ble Apex Court has laid down the guidelines with regard to the liability both in tort as well as liability for offence under Section 304A where it could be said to be rash and negligent act. The Hon'ble Apex Court has considered the pros and cons and referring to the various aspects has made the observations expressing a word of caution that mere deviation from normal professional practice is not necessarily negligence. Medical practitioner cannot be said to be negligent because he has preferred one of the courses or the procedures. However, at the same time, it is also observed as to what could be the negligence in context of medical profession and it has been observed that, "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. 9.1. 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. 9.1. A professional may be held liable for negligence on one of the two things: 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.......... It is also observed that a simple lack or care or error of judgment is not proof of negligence. This has been reiterated in subsequent judgment reported in AIR 2005 SC 3280 wherein the Hon'ble Apex Court has observed the judgment in Jacob Mathew and laid down the guidelines with regard to the liability of a medical practitioner in criminal law. However, the Hon'ble Apex Court has considered the liability in the tort referring to the standard of care expected of a practitioner. The Hon'ble Apex Court was concerned with the similar case of failure of sterilisation operation. Thus, what is expected of the person belonging to the profession in which he is trained and because of his skill and special training he is expected to exercise due care expected of the member of that profession. The degree of skill and care required by medical practitioner is also referred in Halsbury's Laws of England (Fourth Edition, Vol.30, Para 35):- "The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. The degree of skill and care required by medical practitioner is also referred in Halsbury's Laws of England (Fourth Edition, Vol.30, Para 35):- "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. 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." Above said three tests have also been stated as determinative of negligence in professional practice by Charlesworth and Percy in their celebrated work on Negligence (ibid, para 8.110). 9.2. Therefore, the difference of opinion or adopting a different course in a given situation for the treatment may not be a negligence. However, in the facts of the present case, as discussed above, professing or administering the anesthesia for which one is not qualified and without taking necessary precaution or following the procedure, if it is administered resulted in the death, it would certainly lead to a conclusion that the person has failed to exercise reasonable care expected of a person belonging to medical profession. 10. In the present case, while considering the aspect of negligence, it is required to be noted that Dr. Trivedi, as a medical professional, was expected to exercise such reasonable care and diligence as is expected from a person of medical profession. The fact that a qualified anesthetist from that particular branch can only administer the anesthesia even a person of medical branch trained in a separate branch would not be expected to administer the anesthesia and therefore Dr. Trivedi, as a medical professional, was expected to exercise such reasonable care and diligence as is expected from a person of medical profession. The fact that a qualified anesthetist from that particular branch can only administer the anesthesia even a person of medical branch trained in a separate branch would not be expected to administer the anesthesia and therefore Dr. Trivedi was not expected to have acted like a layman and he should have exercised such reasonable care and diligence as expected from a person of that profession who is trained in that profession. Dr. Trivedi being a medical officer would have knowledge about the rules and procedure and also the fact that even in medical profession a person trained in a particular branch can perform a particular treatment like, in this case, only anesthetist can administer the anesthesia. For example, even a person having qualification of medical profession, it is not necessary that he can perform surgery. It is only the person who is trained in a particular branch as a surgeon can perform the surgery and not the other doctor, particularly medical professional who is also otherwise trained in other branch and engaged in medical profession. 11. Therefore, having regard to the aforesaid facts and circumstances, the present second appeal cannot be entertained in light of the settled legal position that scope of second appeal under Section 100 of Civil Procedure Code is very limited and unless any substantial question of law involves, the Court need not entertain such second appeal as observed by the Hon'ble Apex Court in the judgment reported in (2007) 1 SCC 546 in the case of Gurdev Kaur & Ors. v. Kaki & Ors. The same view has been reiterated in the judgment reported in (2008) 8 SCC 92 in the case of State Bank of India & Ors. v. S.N. Goyal and also in the judgment reported in (2009) 5 SCC 264 in the case of Narayanan Rajendran & Anr. v. Lakshmy Sarojini & Ors. 12. Therefore, having considered the questions of law posed and also in light of discussion made herein above, the present second appeal deserves to be dismissed and accordingly stands dismissed. 13. In view of the order passed in Second Appeal, the Civil Application does not survive and accordingly stands disposed of. Notice discharged.