JUDGMENT : Ajay Mohan Goel, J. 1. By way of this appeal, appellant/plaintiff has challenged the judgment and decree passed by the Court of learned District Judge, Bilaspur, in Civil Appeal No. 109 of 2000, dated 06.10.2003, vide which learned Appellate Court while upholding the judgment and decree passed by the court of learned Senior Sub-Judge, Bilaspur, in Civil Suit No. 179-1 of 1997, 12.08.1999, dismissed the appeal so filed by the appellant. 2. Brief facts necessary for the adjudication of the case are that the appellant-plaintiff (hereinafter referred to as ‘plaintiff’) filed a suit for damages on the ground that she was married with Shri Sita Ram about 22 years back and after marriage, she had given birth to two daughters and one son. As per the plaintiff, her husband was not having sufficient means to support the family. Government of India and the Government of Himachal Pradesh had introduced public welfare schemes like family planning operations in Government hospitals. Taking into consideration her family circumstances and on the suggestions as well as inspiration of the defendants, plaintiff got herself operated for family planning by Medical Officer, Bilaspur at Sui Sarhar on 29.12.1984 when a camp in this regard was held by the Health Department. As per the plaintiff, despite having been operated upon, she conceived and gave birth to a male child on 16.07.1996. As per the plaintiff, she was suffering loss of Rs. 50,000/- for the purpose of maintenance of said child who was born after wrong and defective family planning operation by defendants. On these bases plaintiff filed the suit praying that a decree be passed for damages to the tune of Rs. 1,50,000/- as compensation of maintenance to the newly born child, as well as for causing physical and mentally agony to her and financial loss to her. 3. In their written statement, defendants contested the claim on the ground that the plaintiff underwent sterilization operation on 29.12.1984 at Sub Centre Sui Sarhar voluntarily and after long lapse of time, the cut ends of the fallopian tube might have joined which resulted into conception after thirteen years of her operation. As per defendants there were chances of failure of sterilization operation on account of one or other reason and pregnancy after sterilization operation could occur for various reasons. As per defendants there were chances of failure of sterilization operation on account of one or other reason and pregnancy after sterilization operation could occur for various reasons. It was further mentioned in the written statement that after conception of pregnancy that too after 13 years of sterilization operation, the plaintiff could had consulted/visited the hospital to avoid birth of the child but she failed to avail the said alternative. On these bases, the claim of the plaintiff was denied by the defendants. 4. On the basis of pleadings of the parties, learned trial Court framed the following issues:- “1.Whether the plaintiff gave birth to child on account of wrong defective family planning operation carried by defendant No. 3? OPP 2. If issue No. 1 is proved in affirmative, whether the plaintiff is entitled to recover a sum of Rs. 1,50,000/- from the defendants? OPP 3. Whether the suit is not maintainable? OPD 4. Whether the suit is barred by limitation? OPD 5. Whether the plaintiff is estopped from filing the suit by her act and conduct? OPD 6. Whether the plaintiffs is not entitled to any damages on the doctrine of volenti-non-fit injuria as alleged? OPD 7. Relief.” 5. On the basis of evidence produced on record both ocular as well as documentary by the respective parties, the following findings were returned by the learned trial Court on the issues so framed:- "Issue No. 1 No. Issue No. 2 No. Issue No. 3 Yes. Issue No. 4 No. Issue No. 5 No. Issue No. 6 No. Issue No. 7 The suit of the plaintiffs is dismissed per operative part of the judgment." 6. Learned trial Court vide its judgment and decree dated 12.08.1999 dismissed the suit filed by the plaintiff by holding that the factum of plaintiff having undergone sterilization operation on at Sub Centre Sui Sarhar, District Bilaspur on 29.12.1984 was not in dispute, but the plaintiff who entered the witness box as PW-1 was silent about any negligence on the part of the Doctor who operated her nor was there any material in her evidence to warrant that operation conducted upon her was defective. Learned trial Court concluded that from the evidence it could not be held that operation was done carelessly or the operation was defective. 7. Learned trial Court concluded that from the evidence it could not be held that operation was done carelessly or the operation was defective. 7. In appeal, judgment and decree so passed by the learned trial Court was upheld by the learned first Appellate Court. While dismissing the appeal so filed before it, it was held by the learned first Appellate Court that true test of establishing negligence on the part of a doctor in diagnosis or treatment is whether the said doctor has been proved guilty of such failure, as no other doctor or ordinary skill would be guilty of while acting with reasonable care. Learned Appellate Court relying upon the judgment of Hon’ble Supreme Court passed in Laxman vs. Trimbak, AIR 1969 SC 128 , judgment passed by Hon’ble High Court of Bombay in Philips India Ltd. vs. Kunju Punju and Another, AIR 1975 306 and judgment of Hon’ble High Court of Madhya Pradesh passed in Ram Bihari Lal vs. Dr. J.N. Srivastava, AIR 1985 MP 150 held that claim for damages against State had to be analyzed by taking in to consideration the perspective whether it stood established the that conduct of the Medical Officer of the State to be unreasonable. Learned Appellate Court held that doctor Inder Singh (DW-1) was a qualified Medical Officer with more than 10 years service experience. It further held that said doctor, who had entered into the witness box as DW-1, deposed that in medical science, failure of tubectomy operation stood recognized and as such the charge of negligence against the State was unfounded. Learned first Appellate Court held that it was not the case of the plaintiff that Doctor Inder Singh had performed the operation in issue in a negligent manner upon the plaintiff on 24.12.1984 and as a result of said operation the plaintiff had developed some complications. It further held that operation was successful for over 11 years and the requirement of law that Medical Officer must exercise reasonable care in the performance of tubectomy operation thus stood proved. It further held that operation was successful for over 11 years and the requirement of law that Medical Officer must exercise reasonable care in the performance of tubectomy operation thus stood proved. Learned appellate Court also held in para 16 of the judgment that no steps were taken by the plaintiff to terminate the pregnancy at the earliest and her contention that she stood notified of her pregnancy when the said pregnancy was of 5 months duration was a concocted version as in fact the plaintiff was aware of the pregnancy when her menstrual cycle stopped in October/November, 1995. It also held that if the plaintiff did not wanted to have the said child, she could have had terminated the pregnancy at the earliest which was not done. Learned Appellate Court also took into consideration the text from Clinical Obstetrics 8th Edition by A.L. Muudallar and M.K. Krishna Menan, orient Longman law publication chapter 66 at page 571, 572 and 573, in which it is stated that failure rate of tubectomy operation from 0.3% to 0.5 % stood universally recognized. It further held that learned trial Court had correctly observed that mere development of pregnancy after 11 years did not establish the charge of negligence against the Medical Officer of the State. On these bases, learned Appellate Court while concurring with the findings of the learned trial Court, dismissed the appeal. 8. Feeling aggrieved, the plaintiff filed this appeal which was admitted on the following substantial question of law. “1. Whether the Courts below have illegally given the benefit of alleged plea of failure of tubectomy operation to the respondents?” 9. I have heard the learned counsel for the parties and also gone through the records of the case as well as the judgments passed by both the learned Courts below. 10. It is not in dispute that the plaintiff was operated upon on 29.12.1984 by the concerned Medical Officer i.e. DW-1 Inder Singh and she gave birth of a child post the said operation on 16.07.1996 i.e. after more than 11 years of the operation. While dismissing the plaint as well as the appeal filed by the plaintiff it was held by both the learned Courts below that the plaintiff had failed to establish medical negligence on the part of the Medical Officer who had conducted sterilization operation upon her on 29.12.1984. While dismissing the plaint as well as the appeal filed by the plaintiff it was held by both the learned Courts below that the plaintiff had failed to establish medical negligence on the part of the Medical Officer who had conducted sterilization operation upon her on 29.12.1984. While arriving at the said conclusion, it was held by the learned Courts below that it is not as if immediately after the operation which was conducted upon the plaintiff in the year 1984, she developed complications and the very fact that the child was born after about 11 years of the operation proved that operation when conducted was successful. Learned Courts below by taking into consideration the written statement filed by the defendants and the testimony of the defence witnesses also held that failure of such like operations to some extent was a universally recognized feature and this ipso facto did not establish and prove that there was medical negligence on the part of doctor who had conducted the operation. 11. In my considered view, finding so returned by both the learned Courts below are neither perverse nor factually incorrect. It cannot be said that the Courts have illegally given the benefit of failure of tubectomy operation to the respondents. The birth of the child had taken place after more than 11 years of the operation. Defendant No. 2 i.e. Medical Officer concerned, who had operated the plaintiff in the year 1984, had entered the witness box as DW1. In his examination in chief, this witness has deposed that failure due to recanalisation up to 0.1 to 0.3 percent occurred because of hormonal process of the body and this does not reflects that the operation so conducted upon the patient was not a successful operation. Now, in his cross examination, there is no suggestion put to the said witness on behalf of the plaintiff that what the said witness was stating was incorrect. During the course of arguments, learned Counsel for the appellant could not furnish any justifiable explanation as to why the plaintiff did not take immediate recourse for termination of pregnancy if she did not wanted the 4th child. A perusal of the statement of the plaintiff in the Court as PW-1 clearly and categorically demonstrates that her credibility stands impeached in the cross examination by the defendants. A perusal of the statement of the plaintiff in the Court as PW-1 clearly and categorically demonstrates that her credibility stands impeached in the cross examination by the defendants. Besides this, as has been rightly held by both the learned Courts below in order to prove that defendant No. 2 was negligent while operating the plaintiff, it was incumbent upon the plaintiff to have had proved that at the time of operation, defendant No. 2 did not exercise skill and knowledge of reasonable degree which any other doctor in similar circumstances would have had exercised. As damages have been claimed by alleging negligence on the part of defendant No. 2, it was incumbent upon the plaintiff to have had both pleaded and proved the same which the plaintiff has failed to do. 12. Learned Appellate Court while dismissing the appeal so filed by the appellant has referred to the judgments of Hon’ble Supreme Court, Hon’ble High Court of Bombay and Hon’ble High Court of Madhya Pradesh respectively as well as the relevant medical text. Learned Counsel for the appellant could not demonstrate from the records as to how the findings so returned by the learned Appellate Court were not sustainable in the eyes of law. 13. A three Judge Bench of the Hon’ble Supreme Court in Jacob Mathew vs. State of Punjab and Another, (2005) 6 SCC 1 , has held that in the law of negligence, professionals such as lawyers, doctors etc. are included in the category of persons professing some special skill or skilled persons generally. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. Hon’ble Supreme Court in paras 21 and 22 (supra) has further held as under: “21. The degree of skill and care required by a medical practitioner is so stated in Halsbury’s Laws of England (4th Edn., Vol. 30, para 35): “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 a medical practitioner is so stated in Halsbury’s Laws of England (4th Edn., Vol. 30, para 35): “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 that 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.” The abovesaid three tests have also been stated as determinative of negligence in professional practice by Charlesworth & Perry in their celebrated work on Negligence (ibid, para 8, 110). 22. In the opinion of Lord Denning, as expressed in Hucks vs. Cole a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.” 14. Therefore, in view of above discussion, it cannot be said that learned Courts below have illegally given the benefit of failure of tubectomy operation to the respondents and the substantial question of law stands answered accordingly. 15. Accordingly, as there is no merit in the appeal, the same is dismissed. No orders as to costs. Pending miscellaneous applications, if any, also stand dismissed.