Loganathan A/L Mannar v Tenaga Nasional Berhad (BL-12BNCvC-25-08/2023)

9.7.2014 at the Defendant’s premises at Lot 205, Jalan Haji Sirat, 42100 Klang, Selangor. The Defendant is the registered account holder of this premises. [2] This decision by the learned SCJ is after a full trial where Plaintiff’s adduced 6 witnesses whilst the Defendant adduced 2 witnesses. At the end of trial, after hearing the witnesses and perusing the documents filled by parties, the LSCJ found that there was tampering on the meter at the Defendant’s premises and therefore, she allows the claim. [3] There is no dispute that the Defendant is the registered user for the meter supplying electricity to the said premises and had never terminated the said account with the Plaintiff. During the meter installation inspection conducted on 9.7.2014 at the Defendant’s premises, the Plaintiff found that there was tampering with the meter installation, constituting an offence under Section 37(1), (3) and or

of the Electricity Supply Act. As a result of this tampering, the meter could not properly recorder the actual electricity usage supplying to the said premises. [4] The Defendant denied any tampering have been done on the meter that supply electricity to the premises. Respondent had installed 2 meters to supply electricity to the said premises. One of the meters is within the Defendant’s care and control whilst the other meter is installed 300 metres away from the said premise and it is not under the control and care of the Defendant; this is the meter that the Plaintiff claimed the Defendant had tampered with it. The LSCJ was shown as to where the said meter was situated during a site visit on 20,5.2022. Photographs at pages 6, 17, 20,24 and 28 Enclosure 6 shown clearly the said meter in issue was not within the Defendant’s premise. [5] The Defendant claimed that towards quarter year of 2011, the Defendant had reduced his factory production due to shortage of workers and declining business. Therefore, the usage of electricity in the Defendant’s premises have been consistent i.e. between RM 5000 to RM 5000 per month. The Plaintiff’s officers who had inspect the meters at the said premise confirmed there is no tampering done on those meters. However, for the usage of electricity for the month of April and May 2014 at the premise, the amount stated in the bills are different from the earlier bills. The Defendant then lodged a complaint with the Plaintiff on 16.6.2014 and the Plaintiff came to inspect on 9.7.2014. The actual tampering as claimed by the Plaintiff, involving an electric cable that came loose involving a meter that was installed 300 metres away outside the Defendant’s premise, which is not within the care and control of the Defendant. This material fact was not adduced during trial. [6] There is also evidence from SP2 who informed the Sessions Court that there might be short circuit and fuse blow and this cannot be said to be tampering with the meter. As for the sudden drop in the usage of electricity at the premise since 2011, it is because of less usage and not because of the tampering of meter. B. DECISION OF THE COURT [7] The principle in appellate intervention in the findings made by trial court is settled. The court who is exercising the appellate jurisdiction should be slow in disturbing the findings of the trial judge in law and on facts unless the trial court is shown to be plainly wrong on arriving at its decision or where there had been no or insufficient judicial appreciation of evidence as stated by the Court of Appeal in UMW Motor Sdn Bhd & Anor v Allan Chong Teck Hin [2021] 5CLJ 193 “Principles of Appellate Intervention [28] Foremost on our minds are the two tests, namely, “plainly wrong test” and “insufficient judicial appreciation of evidence” test for appellate interference in subordinate court’s findings. In respect of the two tests, the Court of Appeal held as follows in Lee Eng Chin & Ors v Gan Yook Chin & Anor [2003] 2CLJ 19; [2003] 2 MLJ 97 at pp.90 to 99:

Generally, an appellate court will not intervene unless the trial court was shown to be plainly wrong in arriving at its decision or where there had been no or insufficient judicial appreciation of evidence. Judicial appreciation of evidence meant that a judge who was required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. Thus, he must take into account the presence or absence of any motive that a witness may have in giving evidence. Where contemporaneous documents existed, he must test the oral evidence of a witness against these. He must also test the evidence of a particular witness against this. He must also test the evidence of a witness against the probabilities of the case. The principle central to appellate interference is that a decision arrived by a trial court without judicial appreciation of the evidence may be set aside on appeal. [29] The Court of Appeal has reiterated in Ong Chiou & Anor v Keller (M) Sdn Bhd & Ors & anor appeal [2019] 1LNS26; [2019] 3MLRA 322 at pp 329 that: -

We are mindful of the limited role of the appellate court in relations to the findings of court made by the court of first instance. The general principle is that the conclusion of a trial judge is a finding of fact on the oral evidence based on the demeanour and credibility of the finding ought not to be disturbed unless the appellate court is convinced that it is plainly wrong. It would not be sufficient to warrant an appellate court interference merely because the appellate court entertains doubt whether such finding is right. (see: Lee Ing Ching Ors v Gan Yook Chin & Anor [2003]2CLJ 19, [2003] 1 MLRA 95. Gan Yook Chin & Anor v Lee Ing Chin Ors [2004] 4 CLJ 309, [2004] 2 MLRA 1). [8] To enable this court intervention in the findings of the LSCJ in this case, this court shall perused the grounds of judgment, appeal records and submissions by parties. The findings of the LSCJ is premised on the evidence adduced by both parties in the trial. [9] For ease of reference I shall divide the issue as per the issues that the LSCJ laid down for her findings. I. Is the Defendant liable to pay the outstanding sum amounting RM 850,537.86 under the account No. 140 398482 (“the said account”) pursuant to Section 38(3) of the Electricity Supply Act? The Defendant is the registered user for the meter outside the Defendant’s premises and the Defendant operates an ice factory business. The Defendant’s claimed that the reduction of the usage of electricity in his factory is due to labour shortages and declining business; but Plaintiff submits these facts are not supported by any documents. Defendant denied any act of tampering of the said meter since the meter situated 300 metre away from his premises. The Plaintiff found that the meter had been tampered with, where: - i. the meter seal panel was missing; ii. the meter terminal seal was missing iii. the meter display showed symbol FF2: 000C0990 due to a blown 2A potential fuse for the red and yellow phases; iv. the meter terminal screws were loosened at the meter terminals The Plaintiff’s technician then conducted insulation test and after replacing the 2A potential fuse, showed and average error of 77.524%, indicating that the current meter did not record the actual supply and usage of electrical current to the Defendant’s premises. This was explained to the Defendant and the Plaintiff’s technician carried out repair work and the meter functioning properly and in good condition. The Defendant’s technician also reinstalled all seals on the meter installation, including the meter panel and terminal seals. II. Issue on the meter that is said to be tampered is 300 metre outside the Defendant’s premises. The Defendant claims that there were 2 meters installed in his premises. One is within his premise and the other one is 300 metres outside his premise, which he claims he had no control and care of this meter. There was a site visit conducted on 20.5.2022 with the LSCJ joined the site visit together with the parties. It was confirmed that the meter outside the premises is the one supplying electricity to the premises, while the meter inside the Defendant’s premises is non-functional. Therefore, it is not right to say the meter that is 300 meters away (as claim by the Defendant) did not supply electricity to the Defendant’s premises. Therefore, it is correct for the LSCJ in holding that the Plaintiff on balance of probabilities has proven there was meter tampering in the meter that supply electricity to the Defendant’s premises. The Federal Court in Thomas Thomas v Tenaga Nasional Berhad [2017] 4CLJ 340 held :- “[1] TNB’s right to commence civil proceedings against its registered consumers for losses due to the commission of offences under s. 37(1), (3) and (14) of the Electricity Supply Act 1990 (“ESA”). For purposes of a claim under s.38(3) to

(5), it is not necessary for TNB to prove the identity of the person who damaged or tampered with the meter. [2] It was not TNB’s case that it was the appellant who tampered with the meter. Its cause of action was simply based on the fact that the tampering of the meter had caused it to lose revenue. There is no requirement under the ESA that TNB must first prove that it was the registered consumer who damaged or tampered with the meter before it could succeed in its claim against the customer under s. 38(3) to (5) of the ESA. To do so would lead to an absolute absurdity. [3] Meter tampering, causing damage to meter or dishonest consumption of electricity are strictly criminal matters which do not and cannot affect TNB’s right to recover loss of revenue by way of civil proceedings pursuant to s. 38(3) to (5). No registered customer can walk away without paying anything to TNB on the ground that the meter had been damaged or tampered with without his knowledge. Further, a registered consumer cannot avail himself of such defence for the simple reason that it would result in unjust enrichment to the customer. [4] Although the premises was rented to and occupied by a third party and the appellant never occupied the premises, the appellant could not run away from the fact that the agreement for the supply of electricity to the premises was between him and TNB and did not involve any third party. It was the appellant’s sole responsibility, being the ‘consumer’ under the agreement, to pay all outstanding charges due to TNB. The Defendant’s bears the responsibility to pay the charges of the electricity that was not been recorded its actual supply and usage due to the meter tampering. The Plaintiff’s did not have any obligation to prove who did the tampering, as long as there is loss due to the tampering, the registered account owner of the meter and in this case the Defendant, then he had to pay the charges as claim by the Plaintiff. II. Issues relating to the calculation of the Plaintiff’s loss and and expenses The Plaintiff in their submission submits that the Defendant had failed to contradict and/ or rebut the evidence led by the Plaintiff in respect of the calculation of losses and expenses arising from the tampering; and as such the evidence of the losses and expenses must be presumed to be true. The LSCJ have ruled that there is tampering done the said meter and after the test and investigation done on the meter by the Plaintiff’s technician, the meter did not record the actual electricity supplied to the Defendant’s premises, there were error recorded, therefore Plaintiff had proved their losses for the amount of RM 850,537.86. As to the method of calculation, SP4 explained that they calculated the loss using the average consumer usage before the sudden drop observed on 4.8.2011 as per the graphs shown in SP4’s witness statement and this was accepted by the Sessions Court without challenge from the Defendant. The Plaintiff claims that the average usage of 3 months prior to the “sudden drop” is not only based on the Plaintiff/s internal guidelines abut also aligns with the “Garis Panduan Prosedur Tuntutan Kerugian Hasil”. The Plaintiff’s submits that the Defendant had failed to shown how the calculation is incorrect and excessive. [10] As per the decision of the Court of Appeal in UMW Motor Sdn Bhd & Anor v Allan Chong Teck Hin (supra) this Court would not disturb the findings of the trial judge unless she had failed to address the issues in accordance to the law and in coming to her findings had done insufficient judicial appreciation of evidence’. The Court of Appeal in UMW Motor Sdn Bhd had explained in length the meaning of ‘judicial appreciation of evidence’: -

Generally, an appellate court will not intervene unless the trial court was shown to be plainly wrong in arriving at its decision or where there had been no or insufficient judicial appreciation of evidence. Judicial appreciation of evidence meant that a judge who was required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. Thus, he must take into account the presence or absence of any motive that a witness may have in giving evidence. Where contemporaneous documents existed, he must test the oral evidence of a witness against these. He must also test the evidence of a particular witness against this. He must also test the evidence of a witness against the probabilities of the case. The principle central to appellate interference is that a decision arrived by a trial court without judicial appreciation of the evidence may be set aside on appeal. [11] This Courts finds that the LSCJ in arriving at the decision had based it on the evidence of the witnesses and documentary evidence. Therefore, this Court finds there is no room for the decision of the LSCJ to be disturbed. This Court hereby dismissed the appeal with cost of RM 5000. Dated 26 June 2024 -sgd- (NORLIZA BINTI OTHMAN) HIGH COURT JUDGE OF KLANG ADVOCATES AND SOLICITORS FOR THE PLAINTIFF : Nurliny, Pannir Mannar & Co. No. 152, Tingkat 1, Peti Surat 269, Jalan Besar, Pekan Kapar, 42200 Kapar, Selangor Darul Ehsan ADVOCATES AND SOLICITORS FOR THE REPONDENT : Shearn Delamore & Co 7th Floor, Wisma Hamzah Kwong Hing No. 1, Leboh Ampang 50100 Kuala Lumpur