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(01 June 2021) - In relation to Kuala Lumpur High Court Appeal No. WA-11BNCVC-39-12/2020, the learned High Court Judge after considering all evidences and hearing submissions from each parties' counsel, had allowed the consumer's appeal (represented by Zen, Chyuan & Co.) against Tenaga Nasional Berhad's claim for alleged meter tampering.
BACKGROUND FACTS
The consumer in this case is an owner of a premise, which was rented to an Ice Manufacturing Factory. The consumer had applied for electricity supply from Tenaga Nasional Berhad. However, the ice manufacturing factory subsequently closed down and ceased operation around December 2013.
On 24.05.2014, Tenaga Nasional Berhad's representative had conducted inspection on the meter of the consumer's premise. At that time, the premise is empty and does not have any manufacturing operation going on. Without the presence of the consumer, TNB's representative proceeded with the meter inspection and allegedly found tampering, wherefore a wire is found to be disconnected from the fuse, causing the meter to be faulty and failed to record the accurate electricity consumption reading.
TNB then initiated a court suit against the consumer at the Kuala Lumpur Magistrates Court, whereby the Magistrates Court had decided to allow TNB's claim against the consumer. Dissatisfied with the Magistrates Court's decision, the consumer had instructed Zen, Chyuan & Co. to appeal against said decision to the Kuala Lumpur High Court.
On 01.06.2021, the learned Kuala Lumpur High Court Judge, Yang Arif Dato Ahmad bin Bache had given his decision in favour of the consumer, in summary, as follows:-
A. The Magistrates Court had failed to give adequate judicial appreciation to the available evidence
The High Court Judge had taken cognizance of the argument put forward by our counsel, Mr Loh Cien Zen, and noted that the learned Magistrate had not fully appreciated the evidence that was produced before the Court. The learned Magistrate had not considered the Plaintiff's failure to company the requirements under Section 38(4) Electricity Supply Act, nor did she consider the fact that the tampering is not supported by viable evidence. The High Court Judge also took note that the learned Magistrate's grounds of judgment is extremely brief and does not encapsulate the arguments that was put forward.
B. TNB had failed to fulfill the requirements under Electricity Supply Act 1990
Next, the High Court judge proceeded to examine the first argument put forward by our counsel, which is that TNB had failed to comply with the requirements under S.38(4) Electricity Supply Act 1990.
Under S.38(4) Electricity Supply Act 1990, TNB is required to produce and issue a written statement prior to initiating a court suit against the consumer. The said written statement must adhere with the statutory requirements of providing sufficient particulars to the tampering allegation. To that end, our counsel had quoted the Court of Appeal case of Tenaga Nasional Berhad v ATA Industrials (M) Sdn Bhd.
In our current case however, the High Court Judge held that TNB had failed to produce such written statement in accordance with S.38(4), and therefore this claim made by TNB is fatally defective.
C. TNB had failed to prove tampering offence under S.37(1), (3) & (14) Electricity Supply Act
The High Court Judge had also examined our counsel's arguments in relation to the tampering allegation by TNB, which our counsel had succinctly pointed out to the Court that:-
(i) TNB had not provided sufficient evidence to prove that the wire being disconnected from the fuse is an intentional act of tampering;
(ii) The consumer had shown that the security sticker and seal at the meter was never tampered with, and that the meter itself is locked in a metal box, to which TNB only has the key. This shows that the consumer has no access whatsoever to commit the act of tampering at the meter;
(iii) Our counsel had argued that even if there is defects found in the meter, it is not an act of tampering but a normal faulty meter installation, which falls under the governance of Licensee Supply Regulation 1990 as opposed to Electricity Supply Act 1990.
The learned High Court Judge had agreed with our counsel's arguments, and opined that it is impossible for the consumer to commit tampering under the circumstances, and TNB had failed to provide sufficient proof to show that the alleged defect found in the meter is in fact a tampering.
D. TNB's calculation is inaccurate
Lastly, the learned High Court Judge had also taken cognizance of the arguments put forward by our counsel in relation to the errors found in TNB's calculation for the claim sum. The learned High Court Judge agrees that the commencement point of TNB's calculation, which is based on a "sudden drop" in the electricity consumption, is unreliable and cannot be accepted. The learned High Court Judge had also agreed that the tariff utilised by TNB, which is a "commercial" tariff, is incorrect, as the premise is being used for manufacturing operations and "industrial" tariff is applicable.
Based on all the above, the High Court Judge had found that there is underwhelming evidence from TNB which cannot prove definitively that there is tampering by the consumer. The appeal filed and attended to by Zen, Chyuan & Co is allowed.
Implications of this Decision
Based on the above judge's decision, it is applauded that the High Court is imposing a responsibility upon TNB to not frivolously make a tampering allegation against consumers. TNB is required to make sure that any defects found in the meter must be an intentional act of tampering committed by the consumer. TNB is also required to comply and fully adhere to the requirements under S.38(4) of the Electricity Supply Act 1990, which the High Court notes is to ensure fairness to the consumers. Consumers must be allowed to understand and know beforehand the tampering allegations that were made against them.
Zen, Chyuan & Co. is grateful for this decision and shall endeavour to continue serving justice and protecting the best interests of the consumers.
If you have any queries relating to claims by utility and/or energy supply companies, kindly contact us at 016-4358376 (Mr Loh) or email us at zenchyuanco@gmail.com. Alternatively you may leave an appointment at our website www.zenchyuan.com.
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