THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.M.A. No. 849 of 2011 JUDGMENT: The appeal is filed by the insurance company questioning the order dated 26.03.2004 in W.C.No.12 of 2003 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Kadapa. The claim arises out of a fatal accident, where the deceased Eggoni Venkata Subbaiah, who was working as a helper with the 1st respondent, is said to have died. The claimant is the mother of the deceased. The claim was made stating that the deceased was getting a sum of Rs.75/- per day as wages and was aged about 21 years. There is not of much controversy raised by the appellant with regard to the nature of the incident or about the cause of death of the deceased. The learned counsel for the appellant contends that by order dated 12.11.2002, the lower Tribunal has granted a compensation of Rs.2,17,142/- and which has become final. Whereas after the application filed by the mother of the complainant, the compensation was enhanced to Rs.3,21,760/- ignoring the claim that the deceased was earning only Rs.75/- per day. The learned counsel for the appellant further contends that when once an earlier order was passed, the lower Tribunal- Commissioner has no power to pass a subsequent order varying with the compensation and if the claimant is aggrieved, the only remedy is to file an appeal. Leaving apart, the question of the jurisdiction of the lower Tribunal-Commissioner to pass a second order, the fact remains that the claimant, who is the mother of the deceased, herself claimed that the deceased was earning only a sum of Rs.75/- per day. In fact that was the earning capacity determined by the Commissioner in the order dated 12.11.2002. The application of the minimum wages has to be taken into consideration, when there is no proof or claim of the wages of a claimant. When the claimant himself claims that he was getting a lesser salary, there is no point for the Commissioner to apply the minimum wages and enhance the earning capacity of the deceased. Therefore, in this case, evidently, the Commissioner has exceeded the discretion granted to him when the positive claim is only that the earning capacity of the deceased was at Rs.75/- per day. If the earning capacity of the deceased was to be taken into consideration as Rs.75/- per day, the earlier order passed on 12.11.2002 is proper and just compensation. Therefore, the second order passed by the learned Commissioner is not according to the scheme of the Workmen’s Compensation Act and ignoring the claim of the claimant about the earning capacity. Therefore, the second order of the lower Tribunal is set aside and the appeal is allowed confining the compensation to a sum of Rs.2,17,142/- (Rupees two lakhs seventeen thousand one hundred and forty two only), which was granted in the order dated 12.11.2002. No costs. ________________________ N.R.L.NAGESWARA RAO, J 25-08-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.M.A. No. 849 of 2011 DATE: 25-08-2011 MR