JUDGMENT : Rajesh H. Shukla, J. The present First Appeal has been filed by the appellant-original plaintiff being aggrieved and dissatisfied with the judgment and order rendered in Civil Suit No.3018/1981 by the Learned Judge, 11th Court, City Civil Court, Ahmedabad dated 13.06.1986 on the grounds stated in the memo of appeal inter alia that the Court below has failed to appreciate the material and evidence on record. It is contended that the Court below has erred in holding that the plaintiff has failed to prove that as a result of operation, he has suffered and has become impotent. It is contended that the Court below has erred in holding that the original defendant no.2 was not negligent though he has not taken adequate care while performing operation on the appellant-plaintiff. It is contended that the plaintiff has not discharged the burden of proof. It is also contended that the Court below has erred in finding that the deposition of Dr.K.K. Shah is not inspiring confidence and has failed to appreciate that the evidence of other doctors would have been relevant, who have not been examined. Therefore, it is contended that the Court below has committed an error in not finding the defendant no.2 and others as negligent. 2. Learned counsel, Mr. Dipen Desai appearing for the appellant-original plaintiff has referred to the impugned judgment and submitted that the plaintiff was serving with the respondent no.4-Mill and was a member of ESI scheme. The family planning operation was performed on the appellant at ESI D- 32 dispensary in the camp organised by the Mill under the auspices of third defendant and under the supervision and management of the first defendant, Ahmedabad Municipal Corporation - original defendant. He submitted that the respondent no.2, who performed the operation, had used the unsterilised instrument, as a result of which, the plaintiff started having pain in left testis after three years, which was unbearable. He, therefore, approached the doctor, who performed the operation and, thereafter, he was asked to see Dr. Barot of the respondent no.1- Corporation. It was submitted that again he was referred to Bapunagar General Hospital, where he was under the treatment of Dr. Tripathi for a long period and during this period, he had also gone for the private treatment of Dr. Parikh, where he was again operated for removal of left testis. Barot of the respondent no.1- Corporation. It was submitted that again he was referred to Bapunagar General Hospital, where he was under the treatment of Dr. Tripathi for a long period and during this period, he had also gone for the private treatment of Dr. Parikh, where he was again operated for removal of left testis. Therefore, learned counsel Mr.Desai submitted that due to negligence of the respondent no.2 as he used the instrument, which was not properly sterilise, the appellant-original plaintiff had an infection which led to further complication. Learned counsel, Mr.Desai submitted that as a result thereof, left testicle was removed and he had become impotent and, therefore, the Suit has been filed for recovery of damages. He has pointedly referred to the observations in the impugned judgment as well as other record including case papers and submitted that the Court below has also observed at one point that he has infection and still the respondent-doctor, who has performed the operation, is not found negligent. Learned counsel, Mr.Desai submitted that it is well known that the instruments are required to be sterilised first and then only, it should be used and when it is found that the appellant-plaintiff has some infection even prior to the operation then in that case, it should not have been performed at all. He has referred to the discussion with regard to the deposition of Dr.K.K. Shah at Exh.101 and submitted that he has also stated that he had examined the plaintiff clinically diagnosed the ailment. He further submitted that it is clearly stated by Dr.K.K. Shah that when the plaintiff went to him, he had the infection of Granulomau along with bilateral vericocele. He submitted that if preoperative tests were carried out and if there was no infection, it would mean that the appellant plaintiff got the infection due to use of unsterilised instrument for the purpose of operation by the defendant no.2. He submitted that preoperative reports suggest that he had no infection or any problem. Therefore, when the doctor, who later on treated him, has stated that he had infection would suggest that he had got infection, as a result of such surgery, which has not been properly appreciated. He pointedly referred to Exh.60, case papers as well as Exh. 63. He pointedly referred to the case papers of V.S. Hospital at Exh. Therefore, when the doctor, who later on treated him, has stated that he had infection would suggest that he had got infection, as a result of such surgery, which has not been properly appreciated. He pointedly referred to Exh.60, case papers as well as Exh. 63. He pointedly referred to the case papers of V.S. Hospital at Exh. 70 and deposition of the plaintiff at Exh.77 and submitted that only because the appellant-plaintiff could get treatment in the year 1979 after the operation, it cannot be said that there is no negligence in performance of the operation in the year 1976, which was the consequence of the first operation and consequence of the negligence which has led to prolong the treatment. Therefore, time gap cannot be considered to deny the claim for damages. 3. Learned counsel, Mr. Bhavdatt Bhatt appearing with learned counsel, Mr. B.P. Tanna for the respondent no.2 submitted that the chronological events and the discussion in the judgment would be relevant. He submitted that the appellant-plaintiff visited the different doctors at different hospitals and there is no consistency in the treatment. He strenuously submitted that time gap from 1976 when the original operation was performed by the respondent no.2-original defendant no.2 and subsequently what has transpired in 1976 when he got the treatment at VS Hospital is required to be examined as to whether it has any nexus. He submitted that even the evidence which require close scrutiny would suggest that the plaintiff has failed to establish that there was any negligence in performance of family planning operation by the respondent no.2. He submitted that the standard of care has expected of member of profession has been taken care and there is no evidence or material by which any negligence can be attributed to the respondent no.2. Therefore, learned counsel, Mr. Bhatt submitted that admittedly he has got the treatment for long period at Bapunagar Hospital run by the respondent no.3 of Dr. Tripathi and conveniently no case of the said treatment have been placed on record. He submitted that if the case papers are produced on record, it would have revealed whether the operation of the family planning which was performed initially had anything to do with the subsequent defect as there was no complication after the first operation was performed. Tripathi and conveniently no case of the said treatment have been placed on record. He submitted that if the case papers are produced on record, it would have revealed whether the operation of the family planning which was performed initially had anything to do with the subsequent defect as there was no complication after the first operation was performed. He pointedly referred to the observations made in the judgment that the plaintiff has failed to establish the infection, as a result of the family planning (vasectomy) operation. He further submitted that as stated by Dr.K.K. Shah in his deposition at Exh.101, the first operation and the second operation by Dr.K.K. Shah has no connection. He pointedly referred to case papers and submitted that the case history of the patient does not mention any infected Granulomau when he was operated for Bilateral vericocele in the year 1976. He, therefore, submitted that in fact, the previous operation and the later operation of Bilateral vericocele are two separate and if he has received any infection during the second operation, no liability could be fasten in respect of the operation, which was performed three years back. He also pointedly referred to Exh.60, case papers, wherein it has been recorded that the “Post - Vasectomy, Pain? - Granulomau, Bilateral Varicocele” He submitted that there was no complication initially and as stated by Dr.K.K. Shah in his deposition at Exh.101 that if there was any such infection, it would have been immediately removed within 3-4 days, whereas the appellant-plaintiff has not complained to the concerned doctor, though he claims that he had visited and there is no evidence whatsoever placed on record. Therefore, learned counsel, Mr.Bhatt submitted that considering the time gap of three years during which he received treatment with Dr.K.K. Shah and another operation was performed and also he had taken long treatment with Dr.Tripathi of ESI Hospital, Bapunagar, there is no case for any negligence by the respondent no.2 while performing the operation in the year 1976. He, therefore, submitted the present Appeal may not be allowed. 4. Learned counsel, Mr.Bhatt further submitted that even Suit would not be maintainable as it was time barred by limitation and want of notice. He submitted that as per Section 487 of the BPMC Act, notice is required to be served within time limit prescribed and as no such notice has been given. 4. Learned counsel, Mr.Bhatt further submitted that even Suit would not be maintainable as it was time barred by limitation and want of notice. He submitted that as per Section 487 of the BPMC Act, notice is required to be served within time limit prescribed and as no such notice has been given. Therefore, Suit would not have been maintainable and the respondent no.1 could be held vicariously liable only when there is negligence on the part of the respondent no.2. There is no evidence that the plaintiff had visited him at the dispensary after the operation and, therefore, the present Appeal may not be entertained. 5. Learned counsel, Mr. Sachin Vasavada appearing for the respondent no.3 has supported and adopted the submissions made by the learned counsel, Mr.Bhatt. He further submitted that as per the provisions of the E.S.T. Act, the plaintiff was the member of ESI scheme and was, therefore, referred for such operation under the scheme, where the appellant plaintiff is said to have suffered as a result of negligence of the doctor. However, as there is no evidence suggesting any medical negligence particularly when there is no evidence that after the first operation was performed in the year 1976, he had visited to the same doctor. He further submitted that if there was any such complaint or complication within a week, at-least it could have revealed and he would have visited the same doctor. Further, learned counsel, Mr.Vasavada submitted that the family planning operation (vasectomy) and the operation of Bilateral vericocele performed in the year 1976 are two different and have no connection and the appellant-plaintiff has failed to establish any negligence in performance of the first operation in 1976 and he is trying to connect the subsequent operation of 1979. He, therefore, referred to the evidence including the evidence of Dr.K.K. Shah and submitted that the plaintiff has failed to establish any negligence. Learned counsel, Mr. Vasavada submitted that the negligence under the Law of Torts is required to be considered with reference to the well settled principles that the standard of care and skill expected in discharge of the duty by medical practitioner has to be considered and the plaintiff has not to establish that there was any lack of such care in performance of the operation. He submitted that the standard care and skill expected is ordinary care as a member of profession, which he is required to discharge towards the patient. Therefore, learned counsel, Mr. Vasavada submitted that there is no negligence and the present Appeal may not be entertained. 6. In view of the rival submissions, it is required to be considered whether the present First Appeal can be entertained or not. 7. The submissions, which have been made with regard to the negligence aspect are required to be considered. As discussed above, the appellant plaintiff had undergone operation of vasectomy (family planning) in the year 1976, which was in the camp organised by the respondent no.3 with the assistance of the respondent no.1. The case papers, which have been produced at Exhs.49 & 50 are required to be considered. The endorsement on the case papers at Exh.50 dated 23.06.1977 read “Vasectomy done in September, 1976. No urinary complaints. No scrotal swelling. Both sides nodules palpable due to vasectomy. No evidence of epidydivo orchitis” Thereafter, he has taken the treatment as it is evident from the case papers produced on record of ESI Hospital that he has been taking treatment, for which,1 case papers are produced at Exhs. 51-59. Even a note of Dr.K.K. Shah at Exh. 60 make a reference when he visited Dr.K.K. Shah about the history of vasectomy operation before three years and there is a note about the Bilateral vericocele. Admittedly, the appellant-plaintiff has undergone treatment and has undergone an operation for bilateral vericocele in 1979. On perusal of the evidence of Dr.K.K. Shah at Exh.101, it is evident that though he has stated that the plaintiff was having an infection, it has direct connection with the previous operation. But he has also stated that anyhow any surgeon or in any condition with any machines any surgery carries with it, minimum 5% risk of infection with it. He has also stated that he was operated for vasectomy with dialeted blood vessels in the strotum and it has nothing to do with the first operation. He has specifically stated that after the completion of the operation and lapse of 12 hours or a week, if at all infection has taken, it starts showing its physical signs. The period of showing infection depends upon the degree of infection. He has specifically stated that after the completion of the operation and lapse of 12 hours or a week, if at all infection has taken, it starts showing its physical signs. The period of showing infection depends upon the degree of infection. He has admittedly stated that when he examined the patient, he was suffering bilateral vericocele and it has nothing to do with the operation of family planning as stated by him. He has further stated that there was no pus at the site of operation when I examined him. Thus, it is evident that even after three years, when the appellant-plaintiff was examined by Dr.K.K. Shah for the second operation, initially there was no pus and if the condition or infection was such then during all these years, it would have spread or at-least it would have increased so much that it would have normally made out by Dr.K.K. Shah when he first examined him. It is in these background, the case papers are required to be considered. Further, after the operation was performed at the camp in the year 1976 by the respondent-original defendant no.2, the plaintiff is not said to have been visited him again with any complaint and there is no evidence. If the appellant-plaintiff had some pain or difficulty, he would have approached the same doctor and/or the dispensary. It would have shown some further endorsement or noting on the case papers of the same dispensary, where the operation was performed. There is nothing on record to show that he has visited again. On the other hand, he is said to have taken treatment at Bapunagar Hospital of Dr.Tripathi for long period, for which, detailed case papers are produced on record and the case papers, which have been produced on record at Exhs.51-59 would go to show that there is no such remark with regard to any serious complaint, for which, he could have been sent back for further treatment. In fact, he has undergone treatment and operation for bilateral vericocele in the year 1979 and Dr.K.K. Shah has performed the operation later on. The said Dr.K.K. Shah himself has stated that bilateral vericocele has nothing to do with the previous operation. Had there been any complication due to serious infection as a result of first operation before three years, Dr.K.K. Shah would not have performed any operation in the year 1979. The said Dr.K.K. Shah himself has stated that bilateral vericocele has nothing to do with the previous operation. Had there been any complication due to serious infection as a result of first operation before three years, Dr.K.K. Shah would not have performed any operation in the year 1979. Therefore, the plaintiff has failed to establish with case papers or any other details and evidence the nexus between the first operation and his subsequent ailment. The main emphasis that when the operation was performed in the year 1976 at the camp, the doctor had not used sterilised instrument, however, there is no cogent evidence nor any doctor is examined. If the medical negligent is claimed, it was necessary that the evidence of the doctor, who performed the operation, was brought on record, who has not been examined. The appellant-plaintiff has examined Dr.K.K. Shah later on with whom he had taken treatment after three years. He has also not called upon for examination of witness like Dr. Tripathi of ESI Hospital, where he took the treatment for a long time. Therefore, the Court below has rightly observed that Dr. Tripathi could have been the best witness to tell the truth and the appellant plaintiff is stated to have reported to him. The case papers produced at Exh.50 as stated above on the contrary suggest that he has no complaint. Therefore, in absence of any such evidence, the presumption cannot be drawn regarding negligence by the doctor, the respondent no.2. Therefore, the plaintiff has not produced any evidence with regard to the use of unsterilised instrument nor examined the doctor nor has produced the case papers or examined Dr.Tripathi, who could have thrown some light. Therefore in such circumstances, the Court has to consider the well established guidelines for the purpose of deciding the medical negligence. Under the Law of Torts, word negligent has been defined and Word 'negligence' is defined in Black's Law Dictionary (7th Edition) “The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or will fully disregardful of others' rights. The term denotes culpable carelessness.” 8. The term denotes culpable carelessness.” 8. Further, it is well accepted that the degree of care expected of the member of the profession is required to be shown and unless it is established by the plaintiff that such a care was not taken, the claim for damages on negligence cannot be accepted. 9. The Hon'ble Apex Court in a judgment in case of Jacob Mathew v. State of Punjab & Anr., reported in AIR 2005 SC 3180 has considered this aspect of negligence in context of the medical profession and it has observed that “the negligence in the context of medical profession necessarily calls for treatment with a difference. To infer the recklessness or negligence on the part of the profession in particular 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..... 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....... 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.” 10. The degree of skill and care required by a medical practitioner is so stated in Halsbury's Laws of England (Fourth Edition, Vol.30, Para 35), which reads as under:- “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 a medical practitioner is so stated in Halsbury's Laws of England (Fourth Edition, Vol.30, Para 35), which reads as under:- “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 practise 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 practise is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practise; (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 practise by Charles worth and Percy in their celebrated work on Negligence (ibid, para 8.110).” 11. It has also been observed that as it can be found that the procedure which was in fact adopted or which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chooses to follow one procedure and not other and the result was failure. 12. Similar view has been taken by the Hon'ble Apex Court in a judgment reported in case of State of Punjab v. Shiv Ram & Ors., reported in AIR 2005 SC 3280 again reiterating the aspect of medical negligence. In that case before the Hon'ble Court also with regard to the medical negligence in performance of an operation, it has been discussed with regard to the liability and referring to Jacob Mathew's case, the aspect of liability of medical practitioner and criminal law has been discussed. It also refers to the parameters of focusing the liability. In that case before the Hon'ble Court also with regard to the medical negligence in performance of an operation, it has been discussed with regard to the liability and referring to Jacob Mathew's case, the aspect of liability of medical practitioner and criminal law has been discussed. It also refers to the parameters of focusing the liability. Therefore, the basis of liability of professional or doctor is negligence. In other words, unless the negligence is established, the liability cannot be fastened on the medical practitioner. Further, for the purpose of negligence as discussed, the standard of care expected of the member of profession is considered. The standard to be applied for judging whether the person has been negligence or not would be that of ordinary competent person exercising an ordinary skill in that profession. It is also observed in this judgment referring to the judgment in case of Jacob Mathew (supra) that “Deviation from normal practise is not necessarily evidence of negligence. .... So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, 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 he has to choose the lesser evil. The medical professional 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.” 13. The Hon'ble Apex Court in a judgment in case of Smt. Savita Garg v. Director, National Heart Institute, reported in AIR 2004 SC 5058 has also considered the aspect of such medical negligence in context of the claim under the Consumer Protection Act before the Commission and the hospital would be liable vicariously for the doctor engaged by them. However, first negligence of the doctor in performance of the operation has to be established and it has been clearly observed that the Court would be slow in attributing the negligence on the part of the doctor, if he has performed the duties to the best ability with care and caution. 14. It has been observed from the earlier judgment in the case of Spring Meadows Hospitals & Anr. 14. It has been observed from the earlier judgment in the case of Spring Meadows Hospitals & Anr. v. Harjol Ahluwalia through K.S. Ahluwalia & Anr., reported in (1998) 4 SCC 39 that "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." 15. Therefore, what is required to be considered is whether the ordinary skill as a member of profession was shown or not. As discussed above, from the evidence it cannot be said or inferred that there was any such negligence in performing first operation in the year 1976. Further, there is no evidence to establish any nexus with the subsequent development that it was the result of any negligence as alleged while performing the first operation. In fact, the evidence of Dr.K.K. Shah examined by the plaintiff has stated that they are two distinct and separate. Again, the plaintiff-appellant has not placed on record the case papers, for which, the treatment which he had taken for three years and considering the time gap also, such inference with regard to negligence of the respondent no.2-original defendant no.2, who had operated for vasectomy (family planning operation) in the year 1976 cannot be readily inferred. 16. It is in these circumstances, the submissions made by learned counsel, Mr. Desai cannot be accepted. 17. The Court below has while discussing the aspect of notice under Section 487 of the BPMC Act dealt with that it may not be strictly applicable for the purpose of Suit for damages for negligence under the general Law of Torts. Therefore, it does not call for any interference. However, in light of the findings and discussion made herein above, the present First Appeal cannot be entertained and deserves to be dismissed and accordingly stands dismissed. Appeal dismissed.