The main legal point established in the judgment is that the modification of a compensation order must be based on a correction of a clerical or arithmetical mistake, and not on the application of the law. Additionally, the importance of providing notice to the affected parties before issuing a modified order was emphasized.

K.K. Usha, J.

First applicant in W.C.C. No.41/86 is the appellant. Challenge in this appeal is against modification of the order originally passed by the Commissioner for Workmen's Compensation on 31-12-1986 granting Rs. 1,06,257/60 to the appellant as well as to the 3rd respondent herein on account of the death of the son of the 2nd applicant. The original order was passed taking into consideration the wages of the deceased workman at the rate of Rs. 1,200/- p.m. The only evidence was that of the applicants regarding the salary of deceased workman. The 2nd respondent herein even though was made opposite party No.2 remained exparte and ultimately the Commissioner for Workman's Compensation directed the opposite party No.2 to deposit in Court a sum of Rs. 1,06,257/60 towards compensation for the death of the son of the 2nd applicant. It is seen that the 2nd opposite party made an application dated 8-9-1987 along with a petition requesting to issue a revised order on the ground that Workmen's Compensation Commissioner has wrongly taken into consideration the monthly wages of the deceased workman at the rate of Rs. 1200/-p.m. whereas as per the provisions contained under Explanation II to Section 41(b) of the Workmen's Compensation Act, 1923 a monthly wages should have been limited to Rs. 1,000/-. The Workmen's Compensation Commissioner accepted the above contention and issued modified order on 17-9-1987. Admittedly not even a notice was issued to the applicants before the original order was modified.

2. It is contended on behalf of the appellant that the Workmen's Compensation Commissioner has no jurisdiction to modify the order in the manner in which it was done under the impugned order. It is further submitted that the order is bad for violation of principles of natural justice also. On the other hand, it is contended by the Insurance Company, the 2nd respondent, that the Commissioner has power to rectify a mistake as provided under Rule 32(2) of the Kerala Workmen's Compensation Rules, 1958. Learned counsel appearing on behalf of the 2nd respondent relied on two decisions in support of his contention, viz., Intra Chemicals and Drugs Pvt. Ltd. v.Ritpa Narain,1985 ACJ 709, and Mohammed Koya v.Balan, 1987(l) KLT 18.

3. The relevant rule reads as follows:

"32(2). The Commissioner, at the time of signing and dating his judgment, shall pronounce his decision, and thereafter no addition or alteration shall be made to the judgment other than the correction of a clerical or arithmetical mistake arising from any accidental slip or omission."

In the case before us the question that is to be considered is whether while issuing the modified order the Commissioner has made a correction of a clerical or arithmetical mistake. We are not inclined to accept the contention raised by the 2nd respondent that itis a arithmetical mistake that has been corrected by the Workmen's Compensation Commissioner. It is true that while computing the compensation the Commissioner had committed a mistake in not taking into consideration the provisions contained under Explanation II under Section 4(1)(b) of the Act. The mistake occurred due to wrong application of the law or for failure to apply the correct law. It cannot in any manner be described as an arithmetical mistake. The remedy open to the Insurance Company was to file an appeal from the original order passed by the Commissioner for Workmen's Compensation and not by way of an application for correction as was done in this case.

4. The two decisions relied on by the counsel appearing on behalf of the 2nd respondent are of no help to support his argument. In 1985 ACJ 709 an amendment to the schedule was wrongly not taken note of, therefore a modification was made enhancing the amount on the basis of the amendment. The High Court of Punjab and Haryana took the view that what was done by the Workmen's Compensation Commissioner was only to grant what was due to the workman and not to deny the same on