JUDGMENT : K.S. Jhaveri, J. By way of this appeal, the appellant has challenged the judgement and award dated 18.09.2007 passed by the Workmen's Compensation Commissioner, Vadodara in Workmen Compensation Application No. 49 of 2005 whereby the application preferred by the heirs of deceased came to be partly allowed directing the appellant- Insurance Company to pay Rs. 2, 17, 142/- as compensation to claimant with 12% interest from date of accident. 2. The facts in brief leading to the filing of the present appeal can be set out as under: 2.1 According to the claimants, when Sureshbhai who was working as Cleaner cum Labourer of Truck No. GJ-3-V-7606 was on duty on 20.01.2005, because of the heavy work load, there was pain on his chest and stomach. Therefore, he was shifted to SSG hospital for treatment, where he was declared dead. The respondents claimed compensation from the employer and therefore filed an application before the Court of Commissioner for Workmen Compensation Act, Vadodara. After considering the rival submissions, the Commissioner partly allowed the application preferred by the claimants as aforesaid. Being aggrieved by the said order, the present appeal has been preferred. 3. Learned advocate appearing for the appellant- Insurance company has submitted that the deceased died due to heart attack when he was attending the nature's call in the morning. It is further submitted that the deceased did not get heart attack while he was on duty. He submitted that as per the oral evidence of the doctor (Exh. 29) who had shown the cause of death in the PM note, the deceased died due to consumption of unidentified substance and due to that there was heart failure. He therefore submitted that since the proximate nexus between cause of death and employment was not established, the order of the Commissioner deserved to be quashed and set aside. 4. Learned Advocate for the appellant further submitted that in view of decision of the Hon'ble Apex Court in case of Shakuntala Chandrakant Shreshti v. Prabhakar Marun Gawali reported in AIR SCW 6009 : 2007 ACJ 1 , circumstance must exist to establish that the death was caused by reason of failure of heart because of stress and strain of work. The deceased died due to heart attack when he was attending nature's call in the morning. The deceased died due to heart attack when he was attending nature's call in the morning. The failure of heart attack while attending the nature's call is not as a result of stress and strain of employment. Hence, the death was not due to stress and strain closely linked with the employment of the deceased. 5. Learned Advocate for the appellant further placed reliance on the decision of this Court rendered in First Appeal No. 274 of 2002, in which the decisions of the Apex Court in the case of Jyothi Ademma v. Plant Engineer, Nellora and another, reported in AIR 2006 SC 2830 , as well in case of Shakuntala Chandrakant Shreshti v. P.M. Garvali and Anr. Reported in 2007 (112) FLR 203 were relied upon. 6. Learned Advocate for the respondent has supported the judgement and award of the learned Commissioner. 7. Heard learned Advocates for the respective parties and perused the documents on record. It is found that before the Workmen Commissioner, the claimants have examined the concerned doctor Kishorbhai Desai vide Exh. 29 who had carried out the postmortem. He had deposed that the body was abled body and cold. There was no signs of external injuries at the time of P.M. He deposed that at the internal inspection, he found that brain, lungs, spinal cord, and urinal tube were reddish in colour. He found liquid substance in belly and internal part of the belly was also reddish in colour. As per opinion of the doctor, the patient died due to consumption of unidentified substance, and due to that there was heart failure. He has deposed that there was no presence of toxin substance in FSL report. He has further deposed that if any body goes to nature's call at unknown place and there is creature bite, then such incident may arise. This witness was cross examined by the learned Advocate for the insurance company who has deposed in his cross examination that in FSL report, there was no presence of toxic substance. He has also deposed that it is also not mentioned in FSL report with regard to the toxic impact or due to unidentified creature bite. He has deposed that he has shown the cause of death in P.M. Note relying upon the report of FSL. 8. He has also deposed that it is also not mentioned in FSL report with regard to the toxic impact or due to unidentified creature bite. He has deposed that he has shown the cause of death in P.M. Note relying upon the report of FSL. 8. Further, in case of Jyothi Ademma (supra) and Shakuntala Chandrakant Shreshti (supra), the Apex Court relying on Section 3(1) of the Workmen's Compensation Act has taken a view that only because the cause of the death was due to heart attack, the same by itself may not be a ground to arrive at a conclusion that an accident had occurred resulting into death. 9. Thus, looking to the deposition of the doctor and all other attending circumstances it is clear that the heart attack has occurred not while he was on duty. Further as per opinion of the doctor, the patient died due to consumption of unidentified substance, and due to that there was heart failure. 10. It is required to be noted that the Insurance Company has challenged the judgement and award while the employer has not challenged the same and accepted the judgement and award. Though served, the respondent No.3- employer has not chosen to appear before this Court. Therefore, the Insurance company is required to be absolved from the liability. The deceased died due to heart failure because of consumption of unidentified substance and therefore the Insurance company cannot be held liable. Since, the employer has not preferred appeal challenging the order and has accepted the award, the liability is on the employer. 11. In view of the above, the claimant will not be entitled to amount of Rs. 2,70,142/-. The judgement and order of the Workmen Compensation Commissioner directing the insurance company to pay Rs. 2,70,142/- is quashed and set aside. It will be open for the claimant to recover the amount from the employer. 12. In case the amount is lying with the Workmen Compensation Authority, the same will be returned to the Insurance Company. In case the amount is not withdrawn by the claimants it will be open for them to recover the same from the employer. However, if the claimants have already withdrawn the amount deposited by the insurance company, the same shall not be recovered from the claimants, but it will be open for the Insurance Company to recover the same from the employer. However, if the claimants have already withdrawn the amount deposited by the insurance company, the same shall not be recovered from the claimants, but it will be open for the Insurance Company to recover the same from the employer. Appeal is allowed to the aforesaid extent with no order as to costs. Appeal allowed to an extent.