JUDGMENT : PARTH PRATEEM SAHU, J. 1. Appellants by this appeal have challenged the judgment and decree dated 21.10.2002 passed by learned 2nd Additional District Judge, Jagdalpur in Civil Suit No.6B/02 whereby civil suit filed by plaintiffs/respondents herein for damages of Rs.1,39,000/-has been decreed. 2. Brief facts relevant for disposal of this appeal are that appellant No.1 underwent laproscopic sterilization operation in a camp organized by appellants on 17.9.1998. Despite undergoing sterilization operation plaintiff No.1/respondent No.1 herein conceived and gave birth to a female child on 23.8.1999 i.e. plaintiff No.3. Cause of action for filing of suit has been shown that plaintiff No.2, husband of plaintiff No.1, is working as Assistant Teacher and getting monthly salary of Rs.6550/- and on account of negligence of the doctor, who did not carry out sterilization operation with due care and caution, unwanted girl child born to plaintiff No.1 due to which plaintiff No.2 had to bear the financial burden of bringing up an unwanted child and therefore appellant State being employer is also vicariously liable for the negligence of the doctor engaged by it. The plaintiffs have claimed amount towards labour pain & suffering; medical treatment; mental pain & agony, maintenance and marriage expenses of plaintiff No.3. 3. Appellant-State herein filed written statement and denied all the allegations levelled against them in the plaint. It has been pleaded that Dr. D.K. Turre, who conducted sterilization operation, was a qualified surgeon having experience of 10 years and he was competent to carry out woman sterilization operation. Plaintiff No.1 had given her consent at the time of her operation and she was clearly told that sterilization operation is not 100% guarantee for avoiding pregnancy. No negligence was committed by the doctors who organized camp and the doctor who operated plaintiff No.1. It has further been pleaded that if for any reason plaintiff No.1 became pregnant, she could have consulted the doctor immediately and asked for termination of her pregnancy by a competent doctor, but she maintained complete silence and only after giving birth to a female child she raised the issue of failure of sterilization operation. 4. Learned trial Court on the basis of pleadings of respective parties framed four issues for consideration and after providing opportunity of hearing and adducing evidence to respective parties, decided all the four issues in favour of plaintiffs/respondents herein and against defendants/appellants herein. 4. Learned trial Court on the basis of pleadings of respective parties framed four issues for consideration and after providing opportunity of hearing and adducing evidence to respective parties, decided all the four issues in favour of plaintiffs/respondents herein and against defendants/appellants herein. Learned trial Court arrived at a finding that defendants/appellants herein are responsible for unsuccessful laproscopic sterilization operation of plaintiff No.1 and therefore they are liable to pay amount of damages to the plaintiffs and accordingly decreed suit for damages of Rs.1,39,000/-. 5. Learned counsel for appellants would argue that there has been no negligence on the part of doctors in organizing sterilization operation camp and conducting sterilization operation of plaintiff No.1. There are chances of failure in sterilization operation and in case, the operation has failed, the same cannot be held as negligence on the part of treating doctor. He further argues that even the plaintiffs failed to bring on record any material indicating that there was any sort of negligence on the part of doctor who conducted sterilization operation or he did not exercise reasonable skill and care while performing such operation. He further submits that on the said date not only plaintiff No.1 but many other women, who submitted themselves for undergoing sterilization operation, were operated but except plaintiff No.1 none had made any complaint whatsoever. He further argued that plaintiff No.1 herself visited the camp, she was informed in advance that there may be chance of failure of sterilization operation as such operations are not 100% successful and after understanding all this, plaintiff No.1 had signed the document to this effect with her free will. Reliance is placed in the matter of Kusum Sharma & ors vs. Batra Hospital and Medical Research Centre & others, (2010) 3 SCC 480 . 6. Per contra, learned counsel for the respondents argued that the plaintiffs being resident of tribal area acted on the basis of assurance given to her by Health Workers who visited her house and told her that a sterilization operation camp is going to be organized by the State. He further argued that plaintiff No.1 had been given 100% assurance of success of sterilization operation. The doctor who conducted surgery himself was negligent, therefore, sterilization operation failed and she became pregnant. She was forced to give birth to child which was not wanted or expected by her and her husband. He further argued that plaintiff No.1 had been given 100% assurance of success of sterilization operation. The doctor who conducted surgery himself was negligent, therefore, sterilization operation failed and she became pregnant. She was forced to give birth to child which was not wanted or expected by her and her husband. Supporting the impugned judgment and decree, it is submitted that in the facts and circumstances of case learned trial Court has passed the decree for lesser amount of damages then what she was entitled for. Reliance is placed on the judgment of the HIgh Court of MP rendered in the matter of State of M.P. vs. Asharam, (1997) ACJ 1224 and also of the Hon’ble Supreme Court in the matter of State of Haryana & ors v. Santra (Smt.), (2000) 5 SCC 182 . 7. I have heard learned counsel for the parties and perused the records. 8. Plaintiffs in support of their case examined Plaintiff No.1 as PW-1, R.K. Kaushik, Health Worker, as PW-2, Dr. Lakhan Jury as PW-3 and plaintiff No.2 as PW-4. 9. Sterilization operation certificate was submitted and proved as Ex.P-1C. Birth certificate of plaintiff No.3 was submitted and proved as Ex.P-2C. Application dated 26.7.1999 submitted by plaintiff No.2 with the Chief Medical Officer, Kanker regarding failure of sterilization operation, notice under Section 80 of CPC have been submitted and proved as Ex.P-7. 10. Plaintiff No.1- Gomti Bai has stated that on the advise given by Health Worker that by undergoing sterilization operation her family will become happy; she will not become pregnant in future and looking to number of her children (three), she decided to undergo sterilization operation, however, just after two months of sterilization operation, her menstrual period stopped. In Para-5 she stated that she studied upto Class 8th only. She further stated that the doctor has not given any guarantee that after this operation, she will never conceive. She also admitted that the doctor, who operated her, was fully qualified, competent and experienced. Though she stated in her statement before the Court that after 3-4 days of becoming pregnant, she visited Keshkal Hospital but the doctor did not give any advise to her. This statement of plaintiff No.1 is contrary to contents of Ex.P-3, which is an application written by her husband (PW-4) wherein nothing like this is mentioned. Though she stated in her statement before the Court that after 3-4 days of becoming pregnant, she visited Keshkal Hospital but the doctor did not give any advise to her. This statement of plaintiff No.1 is contrary to contents of Ex.P-3, which is an application written by her husband (PW-4) wherein nothing like this is mentioned. There is no whisper in the statement of plaintiff as to how the doctor was negligent in conducting sterilization operation on her. 11. R.K. Kaushik (PW-2) has stated that for the last 21 years he is working as Health Worker and posted at Primary Health Centre, Keshkal. He has stated that he advised plaintiff No.1 for undergoing sterilization operation and he himself took plaintiff No.1 to the camp. He has further stated that before operating any patient, who submitted herself before the doctor, they used to inform the patient that there are chances of failure of sterilization operation. He has further stated that patient interested in undergoing sterilization operation used to fill and sign consent form. Doctor used to give specific information to them before they being operated and only after receiving consent from the patients, they were operated. 12. Dr .Lakhan Juri (PW-3) is the medical officer posted at Community Health Centre, Farasgaon. He produced the records i.e. register in which name of patients are entered, but he has stated that entries were not made by him. Kamal (PW-4), husband of plaintiff No.1, stated before the Court that on the advise of PW-2, his wife agreed to undergo laproscopic sterilization operation and appeared in the camp at Keshkal, but operation failed. He only stated that on 23.8.1999 her wife gave birth to a female child and in his limited income he is able to manage family of three children only but due to birth of fourth child, he is unable to bear burden of bringing up an unwanted child and maintain her. This witness has also not stated in his examination-in-chief as to how the doctor was negligent in conducting sterilization operation on her wife i.e. plaintiff No.1. He has further stated that before operation, the doctor had obtained his consent as also of his wife. He has further stated that he orally informed Dr. Pillai that menstruation of his wife had stopped. He has further stated that there is no prescription showing that they had visited hospital after plaintiff No.1 became pregnant. He has further stated that before operation, the doctor had obtained his consent as also of his wife. He has further stated that he orally informed Dr. Pillai that menstruation of his wife had stopped. He has further stated that there is no prescription showing that they had visited hospital after plaintiff No.1 became pregnant. 13. After going through the entire evidence led by plaintiffs, I do not find any specific averment or statement made by any of the witnesses which can show or suggest that the doctor, who performed sterilization operation, was negligent while performing sterilization operation on plaintiff No.1. 14. Defendants have proved consent form signed by plaintiff No.1 and preoperative medical check-up (Ex.D-4) of plaintiff No.1. 15. Dr. D.K. Turre (DW-1) is the doctor who operated plaintiff No.1 at sterilization camp. He has stated that he himself had operated all the patients who were produced at the sterilization camp. He had obtained consent of plaintiff No.1 and at the time of obtaining consent, he had duly informed her that there is 5% chances of failure of operations conducted in sterilization camp. He further stated that if birth of a child took place after ten months then it can be presumed that sterilization operation failed. 16. Dr. R. Omprakash Pilley (DW-2) is the person who proved document of consent and other application forms. He has stated that after 17.9.1998 i.e. date of operation, he had medically examined plaintiff No.1 and thereafter on 26.9.1998 also he medically examined her. He has admitted that on 17.9.98 laproscopic operation of plaintiff No.1 was done but he denied suggestion that sterilization operation is done with 100% guarantee of success. 17. Defence witnesses have specifically stated that plaintiff No.1 along with other patients were specifically made aware about all important aspects including failure rate of female sterilization operation and only after their consent sterilization operation was done. 18. Perusal of pleadings and evidence led by respective parties would clearly show that plaintiffs have neither specifically pleaded nor proved any of the act of doctor, who conducted sterilization operation of plaintiff No.1, to be negligent in any manner. On the contrary, it has been stated by plaintiff No.1 that the doctor was competent and experienced. To claim damages under the Tort Law, negligence of person against whom claim is made is to be proved, which is lacking in this case. On the contrary, it has been stated by plaintiff No.1 that the doctor was competent and experienced. To claim damages under the Tort Law, negligence of person against whom claim is made is to be proved, which is lacking in this case. Merely because a female had conceived despite undergoing sterilization operation, she does not become entitle to claim damages on the ground of failure of sterilization operation. She had to prove something more that there was negligence on the part of doctor who performed sterilization operation on her and even when she made complaint in this regard, she was not advised properly or her complaint was not taken care of in an objective manner. In the case at hand, plaintiff Nos.1 & 2 both are literate and plaintiff No.2, husband of plaintiff No.1, is a government servant and working as Assistant Teacher. There is no material to show that after confirmation of pregnancy, they have taken any step or made efforts for termination of pregnancy of plaintiff No.1, rather from the statement and pleadings of plaintiffs it is apparent that after becoming pregnant, plaintiff No.1 as well as plaintiff No.2 did not make any effort or complaint to the doctors prior to birth of plaintiff No.3. Having gathered knowledge of pregnancy in spite of having undergone sterilization operation, if plaintiffs No.1 & 2 opted for giving birth to child, it ceases to be an unwanted child and compensation of maintenance, upbringing of such child and expenses to be incurred on her marriage cannot be claimed. Needless to mention that Section 3 of the Medical Termination of Pregnancy Act, 1971 (for short ‘the Act of 1971’) permits termination of pregnancy by a registered medical practitioner in certain circumstances. Explanation-II appended to subsection (2) of Section 3 of the Act of 1971 specifically provides that if a married woman becomes pregnant due to failure of any device or method of limiting the number of children then the pregnancy can be terminated. Section 3 of the Act of 1971 reads thus:- “3.When pregnancies may be terminated by registered medical practitioners.- (1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act. (2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,- (a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or (b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in good faith, that- (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or (ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped Explanation 1.-Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. Explanation 2.-Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. (3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken to the pregnant woman’s actual or reasonable foreseeable environment. (4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a 4 [mentally ill person], shall be terminated except with the consent in writing of her guardian. (b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.” 19. The Hon’ble Supreme Court in State of Punjab v. Shiv Ram & ors, (2005) 7 SCC 1 while dealing with almost identical issue, after taking into consideration its earlier judgment in Santra (Smt.) (supra) has held thus:- “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. 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 herein above, ordinarily a surgeon does not offer such guarantee. 28. The methods of sterilization so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilized woman can become pregnant due to natural causes. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. A reference to the provisions of the Medical Termination of Pregnancy Act, 1971 is apposite. Section 3 thereof permits termination of pregnancy by a registered medical practitioner, notwithstanding anything contained in the Indian Penal Code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy. Explanation II appended to sub- section (2) of Section 3 provides: “Explanation II. Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.” 29. And that provides, under the law, a valid and legal ground for termination of pregnancy. If the woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971. 30. And that provides, under the law, a valid and legal ground for termination of pregnancy. If the woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971. 30. The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed. 31. For the foregoing reasons, we are of the opinion that the judgments and the decrees passed by the High Court and courts below cannot be sustained. The trial court has proceeded to pass a decree of damages in favour of the plaintiffs-respondents solely on the ground that in spite of the plaintiff-respondent No.2 having undergone a sterilization operation, she became pregnant. No finding has been arrived at that will hold the operating surgeon or its employer __ the State, liable for damages either in contract or in tort. The error committed by the trial court, though pointed out to the first appellate court and the High Court, has been overlooked. The appeal has, therefore, to be allowed and the judgment and decree under appeal have to be set aside.” 20. In the case at hand, plaintiff No.1 has not put herself for medical examination to find out reasons of failure of sterilization operation and becoming of her pregnant. Thus, there is absolutely no material on record by way of opinion of any medical expert that in the case of plaintiff No.1 failure of sterilization operation is attributable to the negligence of doctor who performed sterilization operation of plaintiff No.1. In absence of such expert evidence, merely on account of failure of sterilization operation, which is not 100% safe & secure, the doctor, who performed operation, could not have been held liable for medical negligence in performing the sterilization operation of plaintiff No.1. In absence of such expert evidence, merely on account of failure of sterilization operation, which is not 100% safe & secure, the doctor, who performed operation, could not have been held liable for medical negligence in performing the sterilization operation of plaintiff No.1. In these circumstances, this Court is of the considered view that unless and until the plaintiffs specifically proves reason for failure of sterilization operation and connect it with negligency on the part of doctor, who performed surgery or sterilization operation, the plaintiffs cannot become automatically entitled for claiming damages only on the ground of failure of sterilization operation. 21. In Kusum Sharma’s case (supra) the Hon’ble Supreme Court in Para-89 has laid down principles for ascertaining whether medical professional is guilty of medical negligence or not, which reads thus:- “89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:- I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. III. The medical professional is expected to bring 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. IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. VI. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. VI. 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. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck. IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.” 22. In the light of guidelines/principles laid down by Hon’ble Supreme Court, if the facts of present case are considered then it emerges that plaintiffs failed to prove negligence on the part of doctor in conducting sterilization operation. Evidence of Plaintiff No.1 herself shows that doctor was well experienced and trained. In the light of guidelines/principles laid down by Hon’ble Supreme Court, if the facts of present case are considered then it emerges that plaintiffs failed to prove negligence on the part of doctor in conducting sterilization operation. Evidence of Plaintiff No.1 herself shows that doctor was well experienced and trained. Judgements relied upon by learned counsel for respondents are distinguishable on facts. In both the judgements relied upon by learned counsel for respondents, the plaintiffs were very poor and uneducated, whereas plaintiffs in the case at hand are not only educated but one of them is a government servant and working as Assistant Teacher. 23. For the foregoing discussions, this Court is of the considered opinion that learned trial Court has committed error in decreeing suit of plaintiffs/respondents herein and granting them decree of damages of Rs.1,39,000/-. Accordingly, the appeal is allowed and impugned judgment and decree is hereby set aside. No order as to costs. 24. Decree be drawn-up accordingly.