JUDGMENT : Dharam Chand Chaudhary, J. This judgment shall dispose of the present appeal and also the connected one arising out of the judgment and decree dated 16.12.2003 passed by learned District Judge, Solan in Civil Appeal No. 60-S/13 of 2003. It is seen that learned District judge has reversed the judgment and decree passed by learned Senior Sub Judge, Solan in Civil Suit No. 385/1 of 99/97 and decreed the suit in favour of the respondent (hereinafter referred to as the plaintiff) for the recovery of a sum of Rs.70,000/- with interest @ 9% per annum from the date of filing of the suit against the appellants in these appeals (hereinafter referred to as the defendants) jointly and severally. 2. Plaintiff belongs to village Sainj, Post Office Kandaghat in District Solan, a rural area. She has been married to Ved Prakash of that village. She gave birth to two children out of this wedlock. When in the year 1994, the children born to her were 5 and 1½ years of age, on account of their poverty, the couple decided to undergo sterilization operation. She was advised to undergo family planning operation (tubectomy). The operation was conducted by the 3rd respondent, posted at that time in District Hospital, Solan on 8.12.1994 at Kandaghat. The complaint is that the said respondent while conducting the operation had acted negligently and failed to take all precautions. As a result thereof, the operation turned unsuccessful and the plaintiff became again pregnant. She even gave birth to a male child also. 3. Further complaint is that prior to conducting family planning operation of the plaintiff, defendant No. 3 had checked up her womb and other private parts thoroughly and it is after finding everything normal, she was advised to undergo tubectomy. Defendant No. 3 after conducting the operation told the plaintiff that she had taken all care and observed all skill and that the operation was successful. Also that, in future the plaintiff will not bear any child. However, to the utter surprise of the plaintiff, she became again pregnant after one year and four months of undergoing the said surgery. It was beyond her expectation that she will again become pregnant even after conducting the tubectomy. Also that, in future the plaintiff will not bear any child. However, to the utter surprise of the plaintiff, she became again pregnant after one year and four months of undergoing the said surgery. It was beyond her expectation that she will again become pregnant even after conducting the tubectomy. She suffered great risk to her life on account of pregnancy she carried on account of negligence of defendant No. 3, who according to the plaintiff failed to take due care and to observe requisite skill while operating the plaintiff. The plaintiff who was solely dependent upon her husband had to undergo a lot of stress and strain as well as financial burden because huge amount was required to provide best education, schooling, food and clothing etc. to the newly born child. The very purpose of undergoing the sterilization operation was as such frustrated and to the contrary additional burden has come on the plaintiff and her husband to provide all sort of amenities and necessities of life to the newly born child. The plaintiff served the defendants with the legal notice Ext. P-1 under Section 80 of the Code of Civil Procedure vide registered AD post. The postal receipts and acknowledgment are Ext. P-2 to Ext. P-5. However, when defendant failed to reply to the legal notice, she filed the suit for recovery of Rs.2,00,000/- with costs against them. 4. Defendant No. 3 when put to notice has contested and resisted the plaintiff’s claim as laid in the plaint. In preliminary, the objections such as the trial Court has no jurisdiction to try and entertain the suit, no notice of the application under Order 33 Rule 1 of the Code of Civil Procedure was ever served upon her, she did not receive any notice under Section 80 of the Code of Civil Procedure and plaintiff is estopped from filing the suit due to her own act, conduct and acquiescence. On merits, while admitting that the plaintiff was operated for tubectomy by her, it is emphatically denied that operation was conducted negligently or rashly. Rather, all precautions were taken while conducting the operation upon the plaintiff. After the operation, the plaintiff never came to the hospital for proper check up so that the successfulness of the operation could have been assured. Rather, all precautions were taken while conducting the operation upon the plaintiff. After the operation, the plaintiff never came to the hospital for proper check up so that the successfulness of the operation could have been assured. The contention that the plaintiff became pregnant within one and a half year of operation and gave birth to a child after the operation were denied for want of knowledge as according to defendant No. 3, plaintiff never attended the hospital for subsequent examination. It is, however, pointed out that had in spite of the operation, the plaintiff became pregnant, she would have come to the hospital to get the pregnancy washed off, if not interested to give birth to the child. It is pointed out that plaintiff has given consent in writing for undergoing the operation. She was apprised that the operation for all practical purposes was permanent and that there may be some chances of failure of operation for which the Government Hospital/doctor conducting the operation will not be responsible. The plaintiff was also apprised that she was undergoing the operation which carries element of risk also. The criteria to undergo the operation was explained to her and she consented to undergo the operation as per such criteria. Her consent Ext. D-A was pressed in service in support of such averments in the written statement. 5. Defendants No. 1 and 2 in separate written statement have also raised objections qua territorial jurisdiction, service of notice under Section 80 of the Code of Civil Procedure, service of notice under Order 33 Rule 1 of the Code of Civil Procedure and estoppel etc., in preliminary. On merits, while denying the contentions to the contrary in the plaint, it is submitted that her operation was conducted in a very responsible and careful manner after observance of required precautions. Before that consent of the plaintiff (Ext. DA) was obtained. It is pointed out that the plaintiff and her husband are well educated and they cannot be said to be illiterate. The averments that the plaintiff and her husband belong to a weaker section of society, hence poor are denied being wrong and it is submitted that they both are employed in private sector and earning handsome amount. In the application for consent, Ext. The averments that the plaintiff and her husband belong to a weaker section of society, hence poor are denied being wrong and it is submitted that they both are employed in private sector and earning handsome amount. In the application for consent, Ext. D-A, it is specifically mentioned that there could be possibility of failure of operation in rarest of rare cases and for that the Government Hospital/surgeon conducting the operation will not be held responsible. The operation was conducted by defendant No. 3, a well experienced and qualified surgeon after guiding the plaintiff that in case of failure of the operation, she should immediately contact the motivator or the doctor concerned so that M.T.P. etc. could be performed for pregnancy. The plaintiff allegedly did not act upon the advise of the operating surgeon i.e. defendant No. 3 and the staff and to the contrary opted for giving birth to the so called unwanted child. Had she reported the matter of pregnancy well in time to the medical authorities, the birth of the child could have been avoided. The plaintiff who had given birth to two children was expected to have the knowledge of occurrence of pregnancy and as such, she was required to inform the concerned Medical Officer, the pregnancy she carried after the operation. The pregnancy up to three months could have been avoided. The suit has thus been sought to be dismissed. 6. In replication to the written statement filed on behalf of defendant No. 3, the plaintiff has denied the averments to the contrary being wrong and reiterated her case as set out in the plaint. It is denied that she voluntarily consented for undergoing operation. According to her, she was made to sign some documents without taking her into confidence and she was never told that there are chances of failure of operation also. When she sought advise from defendant no. 3, the said defendant had assured her that operation was 100% successful and that no issue would now be born to her nor she will suffer any physical problem after the operation. The said defendant also told her that there was no need to her to come for further check up or there was no apprehension of becoming her pregnant. 7. Similar is her version in the replication to the written statement filed on behalf of defendants No. 1 and 2. 8. The said defendant also told her that there was no need to her to come for further check up or there was no apprehension of becoming her pregnant. 7. Similar is her version in the replication to the written statement filed on behalf of defendants No. 1 and 2. 8. On the pleadings of the parties following issues were framed:- 1. Whether the defendants are negligent and thereby the plaintiff is entitled for damages to the extent of the suit amount as alleged? OPP. 2. Whether this Court has no jurisdiction to entertain this suit as alleged? OPD. 3. Whether the suit is not maintainable in the present form? OPD. 4. Whether the plaintiff has not served as notice under Section 80 CPC. If so, its effect? OPD 5. Whether the defendant is estopped from filing the suit? OPD. 6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction as alleged? OPD. 7. Relief. 9. The plaintiff has herself stepped into the witness box as PW-1. Reliance has also been placed on legal notice Ext. P-1 and the postal receipts Ext. P-2 to Ext. P-5. She has also produced in evidence the discharge summary Ext. P-6 and the certificate of undergoing family planning operation on 8.12.1994, Ext. P-7. 10. On the other hand, the defendants have examined Dr. Maya Ahuja, defendant No. 3 and placed reliance on the documentary evidence i.e. consent of the plaintiff Ext. D-A. The letter of appreciation issued in favour of defendant No. 3 Ext. D-B and the case sheet in respect of the plaintiff prepared on the day of her family planning operation, Ext. D-6. This witness has also made reference to the slip of hospital, Ext. D-D, which though is on record, however, not exhibited. 11. Learned trial Court on appreciation of the evidence has arrived at a conclusion that the defendants are not negligent, as such, the plaintiff was not held entitled to the recovery of damages as claimed. Issue No. 1 was answered against the plaintiff. D-D, which though is on record, however, not exhibited. 11. Learned trial Court on appreciation of the evidence has arrived at a conclusion that the defendants are not negligent, as such, the plaintiff was not held entitled to the recovery of damages as claimed. Issue No. 1 was answered against the plaintiff. The objections that the Court had no jurisdiction to entertain the suit, the suit was not maintainable, legal notice under Section 80 of the Code of Civil Procedure was not served upon the defendants, estoppel and suit was not valued for the purpose of court fee and jurisdiction raised by the defendants were answered against them while answering issues No. 2 to 6. The suit, as such, was dismissed. 12. Learned lower appellate Court in appeal preferred by the plaintiff after taking note of the admitted facts and also the evidence available on record has concluded as under:- “16. The doctor had stated that she never assured plaintiff that there will be hundred percent success by such operation and there were chances for the reasons beyond human control. It was pleaded that the plaintiff could have terminated his pregnancy when she came to know that in spite of operation she had conceived a child. The reason of failure of the operation in the instant case has not been stated. No authentative Book of Medical Science has been brought to my notice by either of the parties. In Dr. Laxman Balkrishana Joshi Vs. Dr. Trimbak Bapu Godbole and another, A.I.R. 1969 Supreme Court, 128, the Hon’ble Apex Court of India has observed that a person who holds himself out ready to give medical advise and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose and that such a person when consulted by a patient owes him certain duties, viz. a duty of care in deciding whether to undertake the case, a duty of care, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. It is not disputed that Dr. Maya Ahuja DW-1 is a qualified Medical Practitioner but the defendants have failed to produce the cogent evidence to pinpoint that the consent and application for sterilization operation form Ex. DA was readover and explained to the plaintiff and she was made aware of chances of its failure. It is not disputed that Dr. Maya Ahuja DW-1 is a qualified Medical Practitioner but the defendants have failed to produce the cogent evidence to pinpoint that the consent and application for sterilization operation form Ex. DA was readover and explained to the plaintiff and she was made aware of chances of its failure. Merely by putting the signatures by her on the said form which is not in the language of the plaintiff will not discharge the burden of the defendants but in the instant case even this document was not put during the cross-examination of the plaintiff. Even she has stated that though her signatures were obtained on a form and she did not know English well as she had studied up to the 9th standard. Therefore, it was incumbent upon the defendant to prove the execution of Ex.DA in accordance with law. Even the defendant has also not stated anywhere that this document was readover and explained to the plaintiff by her. There is only self-serving statement of the doctor that the plaintiff was informed about the pregnancy in case of failure but there is nothing on file to show that after the operation any steps were taken by the said defendant to verify that the operation had been a success. Though in the circumstances of the case, the result of the failure of the operation was due to the reasons within the control of human being and the defendant No. 3 was also found negligent to perform her duty because it is not proved that the plaintiff was made aware of the chance of its failure. The plaintiff due to many reasons might not have decided to terminate the pregnancy. 17. The delivery of a child is itself a proof of negligence on the part of the doctor performing the operation. 18. Under the circumstances of the case, it is duly proved that the plaintiff inspite of the fact that she had undergone family operation and cannot expect to have a child.” 13. Learned lower appellate Court, therefore, has reversed the findings recorded by the trial Court and decreed the suit for recovery of Rs. 70,000/- together with interest against the defendants jointly and severally. 14. Learned lower appellate Court, therefore, has reversed the findings recorded by the trial Court and decreed the suit for recovery of Rs. 70,000/- together with interest against the defendants jointly and severally. 14. The grouse of the defendant-State and also the doctor, defendant No. 3 against the judgment and decree is that the learned lower appellate court has not appreciated the oral as well as documentary evidence in its right perspective and as a result thereof, based its findings merely on surmises, conjectures and hypothesis. The evidence that the plaintiff never visited the hospital for her check up even after becoming pregnant also has erroneously been ignored and to the contrary the sole testimony of plaintiff has been relied upon to decree the suit. The findings recorded by the trial Court that the plaintiff has failed to prove negligence on the part of defendant No. 3 and as such, not entitled to the recovery of suit amount have been brushed aside without assigning any reasons. The plaintiff did not produce any evidence that after becoming pregnant she visited the hospital at Kandaghat and Solan, however, this aspect of the matter has not been properly appreciated. The contents of the consent form in vernacular were read over to the plaintiff before conducting her operation, however, this aspect of the matter has also not been appreciated in its right perspective. The negligence on the part of defendant No. 3 has not been adjudged at all nor it is appreciated that the failure of the operation and the plaintiff having become pregnant could have not been termed as negligence of the surgeon, defendant no. 3. The factum of failure of tubectomy operation from 5 to 7%, an universal phenomenon has not been considered. The medical science is not the exact science and the results of operations sometime are unpredictable and a surgeon cannot be held responsible for failure, if any, has also been ignored. The alleged negligence and failure to take proper care and caution by defendant No. 3 has not been proved by the plaintiff. She has no-where disclosed the nature and extent of negligence attributed to defendant No. 3. Nothing even qua this aspect has been said by the plaintiff in her examination-in-chief. No reason is assigned for decreeing the suit for a sum of Rs. 70,000/-. 15. This appeal has been admitted on the following substantial question of law: 1. She has no-where disclosed the nature and extent of negligence attributed to defendant No. 3. Nothing even qua this aspect has been said by the plaintiff in her examination-in-chief. No reason is assigned for decreeing the suit for a sum of Rs. 70,000/-. 15. This appeal has been admitted on the following substantial question of law: 1. Whether as the plaintiff/respondent No. 1 has neither pleaded not proved the factum of the alleged negligence and the manner in which the appellant/defendant No. 3 failed to take reasonable care and caution while performing the Tubectomy operation, the suit of the plaintiff is required to be dismissed? 16. The connected appeal filed by defendant No. 3 has also been admitted on the following substantial question of law: 1. Whether as the plaintiff/respondent No. 1 has neither pleaded not proved the factum of the alleged negligence and the manner in which the appellant/defendant No. 3 failed to take reasonable care and caution while performing the Tubectomy operation, the suit of the plaintiff is required to be dismissed? 17. It is seen that both the appeals have been admitted on similar substantial questions of law. 18. Mr. D.S. Nainta, learned Additional Advocate General representing the appellant-State and Mr. R.K. Bawa, learned Senior Advocate assisted by Mr. Ajay Sharma, Advocate representing proforma respondents in this appeal, whereas, appellant in the connected appeal have strenuously contended that in the absence of pleadings and proof to the effect that defendant No. 3 was negligent while conducting family planning operation of the plaintiff and that she even failed to impart necessary instructions qua taking post operative care by the plaintiff, the suit could have not been decreed. They have placed reliance on the judgment of the apex Court in State of Punjab V. Shiv Ram and others (2005) 7 SCC 1 and also in Jacob Mathew V. State of Punjab and Another (2005) 6 SCC 1 and on the strength of the ratio thereof urged that merely the plaintiff after having undergone sterilization operation become pregnant and delivered the child, the defendants cannot be held liable to compensate her on this score, as according to them she could have claimed compensation only if able to prove negligence on the part of defendant No. 3 in performing the surgery. 19. Mr. G.D. Verma, learned Senior Advocate assisted by Mr. 19. Mr. G.D. Verma, learned Senior Advocate assisted by Mr. B.C. Verma, Advocate while repelling the arguments addressed on behalf defendants has argued that in the present case the plaintiff has successfully pleaded and proved the negligence attributed to defendant No. 3, not only while conducting family planning operation but also proclaiming after conducting the operation that the plaintiff will not carry pregnancy in future and that the operation was 100% successful. According to Mr. Verma, it is for this reason, the plaintiff could not guess even on menstrual break also that it is on account of she having conceived the pregnancy again. It is further pointed out that in the hospital at Kandaghat also, she was advised that menstrual break may be due to she being weak and not on account of pregnancy. In district hospital at Solan she was advised not to go for termination of pregnancy being 3-4 months old at the pretext that to do so may be dangerous to her life. Therefore, according to Mr. Verma, the law laid down by the apex Court in Shiv Ram’s case supra is distinguishable in the given facts and circumstances of this case. 20. The substantial questions of law as formulated in these appeals being identical in nature can conveniently be determined together by common findings in order to avoid repetition of evidence and also findings. 21. Since the defendants have mainly relied upon the law laid down by the apex Court in Shiv Ram’s case and Jacob Mathew’s case supra, therefore, at the first instance, it is deemed appropriate to look into this aspect of the matter to find out that the law so laid down is attracted in the given facts and circumstances of this case or not. Since the law laid down by the apex Court in Jacob Mathew’s case supra has been discussed and taken into consideration in its subsequent judgment in Shiv Ram’s case, therefore, it is deemed appropriate to take into consideration the law laid down by the apex Court in Shiv Ram’s case. That was a case where husband and wife both had filed a suit for recovery of damages to the tune of Rs.3,00,000/- on account of a child born to them irrespective of the plaintiff wife having undergone tubectomy (sterilization) operation performed by a lady surgeon. That was a case where husband and wife both had filed a suit for recovery of damages to the tune of Rs.3,00,000/- on account of a child born to them irrespective of the plaintiff wife having undergone tubectomy (sterilization) operation performed by a lady surgeon. A certificate like in the case in hand qua undergoing sterilization operation was found to be issued in that case also. The plaintiffs having served the notice under Section 80 of the Code of Civil Procedure filed a suit for damages with the allegations that the child is born to them due to carelessness and negligence of the surgeon. The defendants contested that suit. The plaintiff-wife did not appear in the witness box and it is only her husband who on oath substantiated the averments in the plaint. The defendants have also examined Dr. Sham Lal. The suit was decreed for recovery of Rs.50,000/- with interest and costs by the trial Court. The judgment and decree so passed was even affirmed by the learned lower appellate Court and also the High Court. The matter ultimately landed in the apex Court. The apex Court taking note of the law laid down in Jacob Mathew’s case supra has observed as under in para 8 of the judgment:- “8. The plaintiffs have not alleged that the lady surgeon who performed the sterilization operation was not competent to perform the surgery and yet ventured into doing it. It is neither the case of the plaintiffs, nor has any finding been arrived at by any of the courts below that the lady surgeon was negligent in performing the surgery. The present one is not a case where the surgeon who performed the surgery has committed breach of any duty cast on her as a surgeon. The surgery was performed by a technique known and recognized by medical science. It is a pure and simple case of sterilization operation having failed though duly performed. The learned Additional Advocate General has also very fairly not disputed the vicarious liability of the State, if only its employee doctor is found to have performed the surgery negligently and if the unwanted pregnancy thereafter is attributable to such negligent act or omission on the part of the employee doctor of the State.” 22. The learned Additional Advocate General has also very fairly not disputed the vicarious liability of the State, if only its employee doctor is found to have performed the surgery negligently and if the unwanted pregnancy thereafter is attributable to such negligent act or omission on the part of the employee doctor of the State.” 22. The facts, not in controversy, are that the family planning operation of the plaintiff was conducted by defendant No. 3 on 8.12.1994 in the hospital at Kandaghat. She was discharged from the hospital on 8.12.1994 itself, as is apparent from the discharge summary, Ext. P-6. The case sheet is Ext. D-C, however, the same is not being given to the patient and rather remained in the record of the hospital itself. Therefore, there cannot be any quarrel even qua the plaintiff had conceived pregnancy, irrespective of she having undergone a family planning operation and gave birth to a male child within two years of the operation. She served the defendants with a legal notice Ext. P-1. The postal receipts and acknowledgment are Ext. P-2 to Ext. P-5. The defendants have not given any reply to the legal notice Ext. P-1. 23. It is seen that like in Shiv Ram’s case supra, in the case in hand also, it is not the case of the plaintiff that defendant No. 3 was not competent to perform the surgery and still she proceeded to conduct the same. However, here the allegations are that defendant No. 3 and other supporting staff before and after conducting her tubectomy made her to understand that after the operation, she will neither become pregnant nor any other issue born to her. It is how according to her, defendant No. 3 was negligent and failed in her duty to tell that the operation may fail and she again conceive pregnancy and thereby failed to take due care and precautions before and after the operation was conducted. In the case before the apex Court, it was not the case of the plaintiffs that the doctor who conducted the operation had committed breach of any duty casts on her as a surgeon. This, however, is not the position in the case in hand for the reason that the plaintiff herein has specifically averred as under in the plaint:- “3. This, however, is not the position in the case in hand for the reason that the plaintiff herein has specifically averred as under in the plaint:- “3. ………Prior to the operation defendant No. 3 thoroughly checked up the womb as well as other private parts of the plaintiff and she was found normal in all respects and she was advised by the defendant No. 3 to undergo the operation for tubectomy. At the time of above operation the plaintiff had two issues aged about 5 years and 1½ years. The plaintiff was given assurance that after the operation due care and skill is observed and operation is successful one and in future she will not bear any child.” 24. Defendant No. 3 in the written statement though has denied the allegations of negligence attributed to her being wrong, however, not responded to the averments in the plaint that after the operation was over, she assured the plaintiff that while conducting operation due care and skill has been observed and that the operation a successful and also that in future she will not bear any child. Therefore, such averments in the plaint remained uncontroverted. On the other hand, plaintiff in replication to the written statement filed on behalf of defendant No. 3 has categorically averred as under:- “4………It would be pertinent to mention here that when she took advise from the defendant No. 3, she assured her that after operation no issue would be born out and it is a 100% successful operation and she will not suffer any physical problem after the operation, since the same is very minor and she has no need to further checking or apprehension of pregnancy and due to this assurance she opted to operate which subsequently failed due to negligence of the defendant No. 3………..” 25. Now if coming to the evidence qua this aspect of the matter, the plaintiff while in the witness box as PW-1 in so many words has proved that field staff before she chosen to undergo the operation had assured that after the operation she will not carry any pregnancy. Her version in examination-in-chief is that two issues were already born to her. The field staff from the hospital came to her and they motivated her to undergo family planning operation and also assured that she will not carry any pregnancy thereafter. Her version in examination-in-chief is that two issues were already born to her. The field staff from the hospital came to her and they motivated her to undergo family planning operation and also assured that she will not carry any pregnancy thereafter. On this, she came to the hospital at Solan. The doctor assured her that she will be operated upon properly and that after the operation, there will be no scope of any pregnancy and of giving birth to any other child. Further that defendant No. 3 Dr. Maya Ahuja (defendant No. 3) though had conducted her operation in December, 1994, however, not in the manner as was proclaimed, because she after over one and a half year of such operation again carried the pregnancy. No suggestion was given to the plaintiff in her cross-examination that neither the field staff nor defendant No. 3 ever assured her that operation was successful and that she will not carry any pregnancy after the operation. Meaning thereby that when the assurance was given to the plaintiff that her operation was 100% successful and that she will not carry any pregnancy in future, she may have not even imagined that she is carrying pregnancy when there was menstrual break. The stand of the defendants is that the rate of failure of family planning operation is ranging between 5-7%, however, the present is a case where the plaintiff was not made to understand the same. Defendant No. 3 who performed the surgery has, therefore, committed breach of the duty casts on her to apprise the plaintiff that the chances of failure of family planning operation were also there. Although, an effort has been made to believe that the plaintiff was advised to immediately report in the hospital in the event of becoming pregnant again and to get the pregnancy terminated, however, she never come to the hospital for her follow up subsequent to her operation conducted. It has come in para 3 of the written statement filed on behalf of defendant No. 3. She, however, has not said so while in the witness box that plaintiff was advised to do so when discharged from the hospital. It has come in para 3 of the written statement filed on behalf of defendant No. 3. She, however, has not said so while in the witness box that plaintiff was advised to do so when discharged from the hospital. Her statement in examination-in-chief that after the operation, the patients used to be guided properly to visit the hospital for check up in the case of some disturbance in menstruation is noticed or there being menstrual break and that in the event of patient become again pregnant after undergoing the operation, if willing the doctor may terminate the pregnancy also is general in nature. The plaintiff, however, while in the witness box has denied any such advice given to her after the operation. Any how, defendant No. 3 while in the witness box as DW-1 has admitted that the plaintiff had come to hospital for medical check up after becoming pregnant and that she was advised to get her admitted as an ‘indoor patient’ so that the pregnancy could be terminated but for the reasons best known to her, she failed to get her admitted in the hospital and perhaps was interested in giving birth to the child she had conceived. Such bald assertions without there being any proof, however, cannot be believed to be true for the reason that had it been so, some medical record should have been maintained in the hospital and the same produced in evidence. No doubt, the plaintiff had admitted her visit to the hospital and her check up by defendant No. 3 there, however, as per her version, she was advised not to go for termination of pregnancy being of 2-3 months old at the pretext that to do so may cause danger to her life. Such statement of the plaintiff is nearer to the factual position for the reason that as per her version immediately on noticing menstrual break, she visited the nearby hospital at Kandaghat. She was advised that she may not be pregnant but the menstrual break may be on account of she being weak. She was given some medicines also. No doubt, she failed to produce the prescription slip in evidence at the pretext that it was thrown by her, but it is not understandable as to why a poor lady will tell lie, had she not been went to the hospital at Kandaghat. She was given some medicines also. No doubt, she failed to produce the prescription slip in evidence at the pretext that it was thrown by her, but it is not understandable as to why a poor lady will tell lie, had she not been went to the hospital at Kandaghat. It was rather for the defendants to produce the record of the hospital to ruleout the visit of the plaintiff there because in the hospital a register which contains the particulars of the patients coming to the hospital and the ailment, from which they are suffering, used to be entered. Therefore, the possibility of the plaintiff having first visited the hospital at Kandaghat and there she having came to know that she was pregnant and it is thereafter she visited defendant No. 3 in district hospital, Solan cannot be ruled-out. The plaintiff’s version that it is the doctor who advised that to terminate the pregnancy at that stage would have been dangerous to her life cannot also be ruled-out. The testimony of defendant No. 3 to the contrary that she was advised to seek admission in the hospital for getting the pregnancy terminated without any proof cannot be believed to be true. Therefore, the present is a case where defendant No. 3 has failed to perform the duty casts on her as a surgeon to apprise the plaintiff that irrespective of the family planning operation conducted, in case the same fails and she become pregnant again and also that in such a situation she should rush to the hospital for further management. Such facts, however, were not in Shiv Ram’s case supra before the apex Court and the observations in para 8 of that judgment “the present one is not a case where the surgeon who performed the surgery has committed breach of any duty cast on her as a surgeon” take out this case from the sweep of the above said judgment of the apex Court. 26. 26. The further observations of the apex Court in para 25 of the judgment that “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” also take out the present case from the sweep of the judgment supra because as noticed hereinabove, the plaintiff has satisfactorily pleaded and proved that the defendants at the time of persuading her to undergo family planning operation and even after conducting the operation also assured her about 100% success of the operation and also that she will not carry any pregnancy after undergoing the operation in future. Para 25 of the judgment is also reproduced here as under: “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 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.” 27. True it is that in terms of the ratio of judgment supra, the failure of the family planning operation provides a valid and legal ground for termination of pregnancy. However, in the case in hand, in view of the assurance given to the plaintiff, she seems to have not thought even in dreams also that she can become pregnant again, inspite of having undergone sterilization operation when menses stopped. Even initially the doctor has also ruled-out the possibility of she having become pregnant. It came to her notice that she is pregnant when she went to district hospital, Solan. Even initially the doctor has also ruled-out the possibility of she having become pregnant. It came to her notice that she is pregnant when she went to district hospital, Solan. The pregnancy at that time was 3-4 months old and as such, defendant No. 3 advised her not to go for termination of pregnancy being dangerous to her life. Therefore, the plaintiff had no occasion to terminate the pregnancy. The plaintiff has, therefore, rightly said in the replication that she could know regarding the pregnancy at a very late stage in view of being under a bonafide belief that there was no question of conception by her after having undergone the operation. 28. It is worth mentioning here that the present is not a case where the surgeon Dr. Maya Ahuja, the 3rd defendant was not competent to conduct the operation but she has otherwise been found to have committed breach of duty cast upon her to advise or guide the plaintiff before conducting her operation or guided her to take post operative precautions such as rushing to hospital at once, if become pregnant and she rather was made to understand that the operation was 100% successful and that she will not bear any pregnancy in future. It is in this way, defendant No. 3 has committed the breach of duty casted on her as a surgeon. The present as such is a case where it is careless and negligent attitude attributed to defendant No. 3 and for that matter the doctor on duty in the hospital at Kandaghat that the plaintiff had given birth to 3rd child. Mr. Verma, learned Senior Advocate representing the plaintiff is, therefore, absolutely justified in claiming that the facts of this case are distinguishable from that in Shiv Ram’s case before the Hon’ble apex Court. 29. The defendants have heavily relied upon the so called consent form Ext. D-A. It is seen that this document is in English language. The educational qualification of the plaintiff is 9th standard. True it is that as per her own version, she had studied English as a subject in 8th and 9th class, however, in the considered opinion of this Court, a person with qualification as 9th standard, cannot understand the contents of a document like consent form, Ext. The educational qualification of the plaintiff is 9th standard. True it is that as per her own version, she had studied English as a subject in 8th and 9th class, however, in the considered opinion of this Court, a person with qualification as 9th standard, cannot understand the contents of a document like consent form, Ext. D-A. In the replication she filed to the written statement, it is denied that she has voluntarily consented for her family planning operation and rather as per her version, she was made to sign some document without letting her know that there were chances of failure of the operation. Also that, she being illiterate, could not go through the contents of the consent form. As per her version, Ext. D-A is not binding upon her. If coming to the testimony of defendant No. 3, who has stepped in the witness box as DW-1 though in her examination-in-chief it is stated that the consent form Ext. D-A of the plaintiff was obtained and it is thereafter her operation was conducted, however, as per her version in the cross-examination the consent form, Ext. D-A may have filled in by the motivator/health worker in the family planning department. She expressed her inability to disclose the name of such motivator/health worker who filled in this form. In the same breath, no doubt, she tells us that Ext. D-A was filled in her presence. However, once it is said that form might have been filled in by the motivator/health worker, how she could have turned around and said that the same was filled in her presence, because had it been so, she must have been knowing the name of such motivator/health worker. Being so, version of the plaintiff that she was made only to put her signature on the consent form seems to be nearer to the factual position. What was the qualification of the motivator/Health Worker who filled in the consent form also remained unexplained? It is also not known that he/she had read over and explained the contents of this document in vernacular to the plaintiff. Therefore, it would not be improper to conclude that the consent form Ext. D-A was got signed from the plaintiff in routine without apprising her about the contents thereof in vernacular. Therefore, on this score also, no case in favour of the defendants is made out. Therefore, it would not be improper to conclude that the consent form Ext. D-A was got signed from the plaintiff in routine without apprising her about the contents thereof in vernacular. Therefore, on this score also, no case in favour of the defendants is made out. Learned lower appellate Court has considered this aspect of the matter in its right perspective. 30. The law laid down by learned Single Judge of this Court in State of H.P. and another V. Smt. Kalpana Chauhan and another in RSA No. 310 of 2002 dated 11.04.2014 is also distinguishable on facts and as such, is hardly of any help to the case of the defendants. 31. Now if coming to the prayer in the suit, the plaintiff has claimed the decree for recovery of a sum of Rs.2,00,000/-. Learned lower appellate Court in the given facts and circumstances has, however, decreed the suit only for a sum of Rs.70,000/-. The acts of carelessness and negligence as discussed hereinabove are responsible for giving birth to 3rd child by the plaintiff. A sum of Rs.70,000/- is not even a fraction of the amount required for bringing up a child and to provide him good education as well as settling him in his life, because for this purpose, huge amount is required. It can reasonably be believed that carrying pregnancy and giving birth to a child is a painful process for a woman. Therefore, Rs.70,000/- is not sufficient to compensate the plaintiff on account of pain and sufferings she had to undergo during the period she was carrying pregnancy and at the time when she gave birth to child. Therefore, in a case of decree of such a meager amount, the defendant a welfare state otherwise also should have not raised such a hue and cry. It is observed so by this Court in a case titled the State of H.P and others V. Smt. Satya Devi RSA No. 43 of 2006 decided on March 11, 2016. 32. In view of what has been said hereinabove, both the appeals fail and the same are accordingly dismissed. The judgment and decree under challenge is affirmed. No order so as to costs. Pending applications, if any, shall also stand disposed of.