JUDGMENT : D.K. Paliwal, J. This appeal has been preferred under Section 96 of CPC, being aggrieved with judgment and decree dated 15.05.2003 passed by 10th Additional Judge, (Fast Track Court) Gwalior in Civil Suit No.10-B/2003, whereby the suit preferred by the respondent for awarding the compensation has been partly decreed. 2. Brief facts of the case are that the respondent/plaintiff filed a civil suit pleading that she was having two sons. She consulted Dr. Smt Pradeep Saxena who advised her to undergo sterilization operation. On her advise the respondent/plaintiff was operated on 26.05.1999 at Government Hospital, Fort Road, Gwalior. Certificate has been issued in favour of the plaintiff. It is further pleaded that the respondent/plaintiff has undergone operation because her husband is receiving salary which is not enough to maintain her two sons. It is further pleaded that due to negligence of doctor in the operation, she suspected that she is pregnant then again she consulted doctor on 10.06.1999. On 13.10.1999 when she had gone for checkup it was found that she is pregnant. It is further pleaded that on 10.05.2000 the respondent/plaintiff gave birth to a male child. The respondent/plaintiff suffered physical and mental agony to have a third issue because she was already having two male issue and she would have to bear the expenses of third issue. The respondent/plaintiff is a poor lady and her husband income is very low hence it is very difficult to maintain third child. Respondent/plaintiff gave a notice under Section 80 of CPC for the payment of compensation of Rs.1,50,000/-. Thereafter, the suit has been filed claiming compensation of Rs.1,50,000/-. 3. The appellants/defendant in their written statement stated that the operation was done with the consent of the respondent/plaintiff. It is further stated that respondent/plaintiff was well aware that there is a possibility of failure of operation and if it is failed then concerning doctor shall not be held responsible. It is further stated that after operation, respondent/plaintiff was advised to have regular checkup but she has not complied with. Appellants/defendant have not committed any negligence, hence, prayed for dismissal of the suit. 4. It is further stated that after operation, respondent/plaintiff was advised to have regular checkup but she has not complied with. Appellants/defendant have not committed any negligence, hence, prayed for dismissal of the suit. 4. On the basis of the pleading of the party, learned Trial court has framed the following issues : okn iz'u mi~ifRr;k 1- D;k oknh us fnukad 26-05-1999 dks 'kkldh; fpfdRlky; QksBZ jksM+] Xokfy;j esa izfroknh dzekad&3 ls ifjokj fu;kstu ds varxZr ulcanh dk vkWijs'ku djk;k Fkk\ gka 2- D;k izfroknh dz0 3 ds }kjk ulcanh dk vkWijs'ku ykijokgh <ax ls djus ds dkj.k oknh xHkZorh gksdj mls ckyd mRiUu gqvk\ gka 3- D;k ulcanh vkWijs'ku ds ckotwn iqu% oknh dk cPpk gksus ls okfnuh o mlds ifr dks ekufld] 'kkjhfjd o vkfFkZd uqdlku gqvk gS\ gka 4- D;k oknh fcuk /kkjk 80 lh0-ih0-lh- dk uksfVl fn;s nkok izLrqr fd;k\ izHkko\ lwpuk i= fn;k gSA 5- D;k nkos esa pkgh xbZ {kfriwfrZ /kujkf'k ij ,Moksysje U;k;'kqYd ns; gS\ vafre vuqPNsnkuqlkj fujkd`rA 6- D;k oknh }kjk pkgh xbZ {kfriwfrZ /kujkf'k fdruh o fdls izkIr djus dh vf/kdkjh gS\ :0 lkB gtkj {kfriwfrZ Lohd`rA 7- lgk;rk ,oa O;;\ vafre ijsPNsnkuqlkj fMdzhA 5. After scanning the evidence, learned Trial Court answered the issue No.1 to 4 affirmatively and partly decreed the suit. Rs.60,000/- has been awarded as compensation. Being aggrieved, the appellants/defendant preferred this appeal. 6. It is submitted by appellants/defendant that learned Trial Court has not properly appreciated the evidence and material available on record. The finding recorded by the Trial Court with regard to issue No.1 to 3 is illegal. There is no material to hold the negligence of the appellant. It is submitted that respondent/plaintiff was aware that there is a possibility of failure of operation and she has given her consent in writing that she will not hold responsible to any one for failure of operation. Learned Trial Court also erred in holding that plaintiff is entitled for compensation of Rs.60,000/-. Hence, prayed for setting aside the decree. 7. Learned counsel appearing on behalf of the respondent/plaintiff supported the finding and preyed that appeal be dismissed. Respondent has also filed cross-objection. It is stated that respondent/plaintiff claimed the award to the tune of Rs.1,50,000/- and learned Trial Court awarded only Rs.60,000/-. Learned Trial Court has not assigned any reason for granting only Rs.60,000/-. It is prayed that compensation of Rs.1,50,000/- be awarded. 8. Respondent has also filed cross-objection. It is stated that respondent/plaintiff claimed the award to the tune of Rs.1,50,000/- and learned Trial Court awarded only Rs.60,000/-. Learned Trial Court has not assigned any reason for granting only Rs.60,000/-. It is prayed that compensation of Rs.1,50,000/- be awarded. 8. Learned counsel for the appellants/defendant submitted that respondent/plaintiff is not entitled for any compensation. Learned Trial Court erred in granting compensation of Rs.60,000/-. Hence preyed for dismissal of cross objections. 9. Before proceeding to examine the issue involved in this appeal it would be appropriate to refer the settled principles for holding negligence of doctors. Hon'ble Supreme Court in the matter of Laxman Balkrishna Joshi v. Trimbak Bapu Godbole, [ AIR 1969 SC 128 ] observed as under :- "11. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties viz. a duty of care in deciding whether to undertakes the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a 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. 10. In Vinitha Ashok v. Lakshmi Hospital, (2001) 8 SCC 731 , the entire case law has been dealt with and it has been concluded that the doctor is not liable for negligence if the course adopted by him is "reasonable" and his view is not "illogical". 11. Hon'ble Apex Court in the case of Jacob Mathew v. State of Punjab and Another [ 2005 (6) SCC 1 ] observed as under : "19. 11. Hon'ble Apex Court in the case of Jacob Mathew v. State of Punjab and Another [ 2005 (6) SCC 1 ] observed as under : "19. An of quoted passage defining negligence by professionals generally and not necessarily confined to doctors, is to be found in the opinion of McNair, J. in Bolam v. Friern Hospital Management Committee WLR at p. 586 in the following words : (All ER p. 121 DF)"[W]here you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill ….. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art." (Charlesworth & Percy. ibid... para 8.02) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx "45. Spring Meadows Hospital v. Harjol Ahluwalia is again a case of liability for negligence by a medical professional in civil law. It was held that an error or judgment is not necessarily negligence. The Court referred to the decision in Whitehouse v. Jordan and cited with approval (at SCC p.47, para 9) the following statement of law contained in the opinion of Lord Fraser determining when an error of judgment can be termed as negligence: (All ER p. 281 b-c) "The true position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligent. If, on the other hand, it is an error that a man, acting with ordinary care, might have made, then it is not negligence." xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx "48-(2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practise acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practise or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, which assessing the practise as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. "48-(3) A professional may be held liable for negligence on one of the two findings, either he was not possessed of the requisite skill which the professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence." 12. Smt. Pushpa (PW-1) deposed that after giving birth two issues she consulted Dr. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence." 12. Smt. Pushpa (PW-1) deposed that after giving birth two issues she consulted Dr. Smt. Pradeep Saxena she advised for operation. She further deposed that on 26.05.1999 Dr. Smt. Pradeep Saxena has operated her for sterilization and gave a certificate Ex.P-1 to Ex.P-8. She further deposed that due to negligence of Dr. Smt. Pradeep Saxena in sterilization she became ill. When she consulted the doctor on 10.08.1999 she started treatment on 13.10.1999. She got checkup at Jayarogya Hospital, where she was informed that she is pregnant. When she informed about her pregnancy to Dr. Smt. Pradeep Saxena she expressed inability to do something. Despite sterilization operation she gave birth to a male child on 10.05.2000. Her husband is in service and earn low salary. She has already two issues and it is very difficult to maintain third issue. She and her husband shocked after the birth of third child despite of sterilization operation. 13. Ashok Kumar (PW-2), husband of Smt. Pushpa, stated that he consulted his wife who advice for sterilization on 26.05.1999. Dr. Smt. Pradeep Saxena has operated his wife. He further deposed that after operation his wife became pregnant and gave birth to a male child. Due to birth of third child he has been deprived of benefit of green card. 14. Dr. Smt. Pradeep Saxena deposed that on 26.05.1999 she did sterilization operation of Smt. Pushpa and prior to the operation Pushpa has given her consent and filled up the application form which was read over her. She was apprised the possibility of failure of operation. Application form Ex.P-1 which was signed "A" to "A" and signature of Pushpa "B" to "B". She further deposed that after sterilization operation she advised for checkup but after pregnancy Pushpa has not contacted her. She has not committed any negligence during operation. Hence, she could not be held responsible. 15. Smt. Aliamma (DW-1) stated that she was posted as nurse on 26.05.1999. She has read over the form and Pushpa has signed the form after giving her consent. She has not committed any negligence during operation. Hence, she could not be held responsible. 15. Smt. Aliamma (DW-1) stated that she was posted as nurse on 26.05.1999. She has read over the form and Pushpa has signed the form after giving her consent. She further deposed that after sterilization operation Pushpa was advised for checkup from time to time but neither she has not visited the hospital after operation nor made any complaint. 16. On behalf of the respondent/plaintiff, no doctor has been examined to prove the negligence of Dr. Smt. Pradeep Saxena. Ashok Kumar (PW-2) denied that before operation a form was read over to his wife, wherein it was mentioned that there are some chances of failure of operation and if operation fails then doctor can not be held responsible. 17. Smt. Pushpa (PW-1) has admitted in her cross-examination that prior to operation, application form was signed by her and she has given her consent for operation. She further denied that the lady doctor told her prior to operation that there is some possibility of failure of operation. 18. On perusal of the Ex.P-1, it appears that it has clearly been mentioned that there is some possibility of failure of operation. Hence, she or her relatives cannot held the doctor responsible. 19. Thus, prior to operation, it was explained to the respondent/plaintiff that there is some possibility of failure of operation and for the failure, the concerning doctor shall not be held responsible. 20. Smt. Pushpa (PW-1) in para-11 could not point out that what negligence committed by lady doctor during sterilization operation. According to her, even after operation she gave birth to a child itself shows the negligence of the lady doctor. 21. A doctor does not give a contractual warranty. He is not an insurer against all possible risks. He or she does not provide insurance that there would he no pregnancy after sterilization operation. As demonstrated above there is a chance of sterile being turned into fertile even after the operation has been done with due care and caution. A doctor is not liable in negligence because someone of grater skill and knowledge would have prescribed different treatment or "operated in a different way". She has to show only a reasonable standard of care. She cannot be held guilty for error of judgment. A doctor is not liable in negligence because someone of grater skill and knowledge would have prescribed different treatment or "operated in a different way". She has to show only a reasonable standard of care. She cannot be held guilty for error of judgment. Considerable deference is paid to the practices of the professions (particularly medical profession) as established by expert evidence and the Court should not attempt to put itself in the shoes of the surgeon or other professional man. 22. As regards sterilization A William's Obstetrics 21st Edition Pages 1556 to 1560 deal with "sterilization". It is stated at page 1559 of 1997 Edition : "No method of tubal sterilization is without failure". "Soderstrom (1985) concluded that most sterilization failures were not preventable. A similar conclusion was reached by the American College of Obstetricians and Gynecologists (1996), which stated, "pregnancies after sterilization may occur without any technical errors. Finally, the lifetime increased cumulative failure rates overtime are supportive that failure after one year are not likely due to technical errors". Thus, according to this authoritative book the failure of tubal sterilization is not necessarily on account of negligence of the doctor. 23. Learned Counsel appearing on behalf of the respondent has placed reliance in the decision of Hon'ble Supreme Court in the case of State of Haryana v. Smt. Santara reported in 2000 (5) SCC 182 . 24. In the case of Santara (supra), the plaintiff having seven children and undergone for sterilization operation. It was found that right Fallopian tube was operated and left Fallopian tube was untouched. On this basis, it was held that doctor was negligent because he has operated only one Fallopian tube while he was required to operate both the Fallopian tube to avoid further pregnancy. Due to negligence of the doctor, damage was awarded to Santara. 25. In the instant case, no specific act of negligence on the part of the lady doctor has been pointed out. Therefore, in the facts and circumstances of this case the decision in the Santra Case (supra) is not applicable in the present case. The lady doctor who operated the respondent/plaintiff cannot be held negligent. 26. In view of aforesaid discussion, in the opinion of this Court, learned Trial Court has not appreciated the evidence and material in its proper perspective and erred in holding the appellant negligent for sterilization operation. The lady doctor who operated the respondent/plaintiff cannot be held negligent. 26. In view of aforesaid discussion, in the opinion of this Court, learned Trial Court has not appreciated the evidence and material in its proper perspective and erred in holding the appellant negligent for sterilization operation. In the opinion of this Court the respondent/plaintiff failed to prove the negligence on the part of the doctor. The impugned judgment and decree deserves to be set aside. 27. In view of above discussion, this appeal deserves to be allowed and the cross objection deserves to be dismissed. 28. Consequently, the appeal is allowed and judgment and decree passed by learned Trial Court is set aside and suit filed on behalf of the respondent is hereby dismissed. Cross objection filed by respondent is dismissed. Parties to bear their own cost. Decree be drawn up accordingly.