Mahkamah mengambil kira dan memberi pertimbangan terhadap implikasi undang-undang yang mungkin berkaitan dengan fakta-fakta yang diplid, tetapi tiada keperluan untuk memplidkan implikasi undang-undang tersebut. Mahkamah Rayuan di dalam kes Quah Swee Khoon v. Sime Darby Bhd [2000] 2 MLJ 600 di dalam penghakiman Gopal Sri Ram HMR (pada ketika itu) telah memutuskan seperti berikut:- “The Industrial Court in holding that there was a breach of implied term leading to constructive dismissal was not adjudicating upon an unpleaded point as all the facts relevant to that point was pleaded. Only the legal result thereof was not pleaded. It is unnecessary to plead the legal result which will inevitably follow from a set of pleaded facts.” [18] Adalah tidak boleh dinafikan bahawa Plaintif ada memplidkan fakta mengenai usikan dan kerugian dalam Pernyata Tuntutan. Sekiranya fakta-fakta material ini didapati oleh Mahkamah sebagai berjaya dibuktikan, implikasi undang-undang atau “the legal result” akan menyusul dengan terpakainya peruntukan – peruntukan Seksyen 37 dan 38 Akta tersebut. Secara specifiknya, sekiranya terdapat usikan, ini menyalahi Seksyen 37(3) yang membolehkan Plaintif membuat tuntutan kerugian hasil disebabkan kesalahan usikan tersebut di bawah Seksyen 38(3)…” (Emphasis added) [17] The Learned JC further held that the essential facts have been pleaded, and it is merely the legal effect that was not specifically stated. This does not render the Plaintiff’s claim defective. Furthermore, no prejudice has been caused to the Defendant, who clearly has full knowledge of the Plaintiff’s claim. [18] In the case before this Court, the Court finds that the Plaintiff, in its Statement of Claim, has pleaded essential and material facts, that there was tampering with the Plaintiff’s meter at the premises through direct wiring connections bypassing the meter, causing the meter to fail to record the actual electricity consumption. Therefore, the Defendant’s argument is without merit and should be dismissed. Whether the alleged meter tampering has been sufficiently proven by the Plaintiff. [19] Having considered the testimony of the Plaintiff’s witnesses together with the documentary exhibits tendered, this Court is satisfied that there is credible evidence of meter tampering. [20] SP1, as the head of the inspection team, testified that the inspection conducted at the said premises revealed signs of tampering, specifically the presence of direct connection wires from the sidewalk service wire for all three phases and the neutral, connected to the premises without passing through the meter. SP1 further stated that the direct connection wires were foreign wires and not part of the Plaintiff’s installation. Additionally, a three-phase circuit breaker, which formed part of the tampering method, was tendered in Court as Exhibit P8. The direct connection wires can also be seen in the photographic exhibits marked P6 (5), (6), and (7). This is an established facts and remained unchallenged by the Defendant. [21] This Court also notes that corroborative evidence was given by SP2 and SP3, both of whom were present during the inspection carried out on 11.4.2023 at the premises. Their testimonies clearly support the finding that tampering had occurred, which resulted in the Plaintiff’s meter being unable to record the actual electricity consumption. [22] The Defendant submits that there is no evidence to suggest that the physical meter at the premises was tampered with, as the diversion of the wires occurred without involving the meter itself. Furthermore, the Plaintiff’s failure to produce the meter as an exhibit in court warrants an adverse inference under Section 114(g) of the Evidence Act, given that the meter constitutes crucial evidence to establish that tampering occurred. The Defendant also contends that the Plaintiff has failed to adduce any evidence to prove that the meter was in proper working condition. [23] The Defendant further argues that if the electricity flow had been diverted due to tampering with the meter installation, the meter would not have been able to record any usage. However, in this case, the meter continued to operate and recorded electricity consumption at the premises. [24] This Court agrees with the Plaintiff’s submission that the direct connection wires discovered during the inspection constituted a foreign object functioning as a form of electrical bypass. Upon conducting an actual current reading, it was found that these direct connection wires caused the meter to fail in recording the actual electrical consumption. This Court is satisfied that the failure to record accurate usage was not due to a malfunction of the meter itself, but rather the result of the direct connection wires acting as a bypass, allowing electricity to flow without passing through the meter. The testimony of SP1 clarified that corrective action was taken, whereby the direct connection wires were removed and the wiring was restored. As such, there was no necessity for the meter to be produced in court. [25] This Court finds no merit in the Defendant’s submission that, had there been a diversion of electricity flow due to tampering with the meter installation, the meter would not have recorded any usage. The evidence of SP1 was credible, particularly in relation to the function of three – phase circuit breaker, which allows the user to control electricity supply and operates as a switch to turn the supply on and off. While a bypass through a direct connection wire may result in the current not passing through the main meter, this does not necessarily preclude any current from reaching the meter. [26] This Court accepts the Plaintiff’s argument that the direct connection wire was used to operate bitcoin mining machines, which are known to consume substantial amounts of electricity. Therefore, the existence of such a bypass does not, in itself, mean that the entire flow of electricity was diverted from the meter. The meter would still have recorded the consumption of other electrical appliances, such as lighting and related equipment. [27] Having considered the evidence given by the Plaintiff’s witnesses, supported by photographs showing tampering on the meter installation during the inspection, this Court is satisfied that the Plaintiff has successfully proven that tampering occurred within the meaning of section 37(3) of the ESA 1990. Whether the tampering was done by, or can be attributed to the Defendant. [28] The Defendant pleads that the premises were rented out to one Ang Yoong Lim. Thus, Ang Yoong Lim was the one who should be held liable for the undercharges of the electricity usages. The Defendant further argues that it is not the pleaded case of the Plaintiff that the Defendant is the registered consumer. [29] This Court refers to paragraph 3 of the Defendant’s Amended Statement of Defence, wherein the Defendant admits the Plaintiff’s Amended Statement of Claim in the following terms: “3. Atas permintaan Defendan, Plaintif telah memberikan bekalan elektrik ke premis 192 Atas, Persiaran Komersial 10, Psrn. Komersial 5, Jalan. Lintang, Water Front, 31100 Sungai Siput (U), Perak Darul Ridzuan (kemudiannya dirujuk sebagai “Premis tersebut”) dan didaftarkan di bawah Akaun No. 6225 210264904710 yang mana kadar penggunaan elektrik adalah tertakluk kepada tariff yang ditentukan oleh Plaintif dan dipersetujui oleh Defendan. Penggunaan tenaga elektrik tersebut adalah tertakluk kepada syarat-syarat pembekalan dan Peraturan-peraturan Bekalan Pemegang lesen 1990 yang mana Defendan mempunyai pengetahuan berkenaan perkara tersebut.” [30] The fact that the Defendant is a registered consumer was never disputed throughout the course of this trial, and in fact, no supporting documents were produced by the Defendant’s witnesses to rebut the Plaintiff’s version of events. Thus, the Defendant ought not to raise this issue, and it should be dismissed. [31] This Court further refers to the case of Thomas Thomas v. Tenaga Nasional Bhd [2017] 4 CLJ 340, wherein the Court of Appeal held that in instances of meter tampering, the registered consumer is liable to pay for the undercharged electricity consumption once TNB has established proof of the tampering, regardless of who caused it; “[11] … For the purposes of a claim under s. 38(3) to (5), we take the view that it is not necessary for TNB to prove the identity of the person who damaged or tampered with the meter.” … [22] Thus, where the meter was damaged or tampered with by the tenant or by the occupier with or without the appellant’s permission or by anyone else during the agreement period, the appellant must pay for the resulting loss of revenue suffered by TNB, not because he had anything to do with the tampering or damaged caused to the meter but because he was bound by agreement to pay for the electricity charges. The loss of revenue under such circumstances cannot fall on TNB’s head. That will be grossly unfair to TNB.” (Emphasis added) [32] Accordingly, this Court finds that the Plaintiff’s claim against the Defendant is based on the Defendant’s capacity as a registered customer and is brought pursuant Sections 38(3) to (5) of the ESA 1990. The question of whether the Defendant personally utilized the electricity, or had rented out the premises to a third party is immaterial, particularly in light of Defendant’s own admission of being the registered consumer for the electricity supply at the said premises. Whether the Plaintiff was negligent and thereby contributed to the loss suffered? [33] As previously mentioned, the Defendant contends that The Plaintiff was contributorily negligent for failing to take immediate action to disconnect the electricity supply upon discovering the tampering. The Defendant further asserts that the Plaintiff had a duty to identify and apprehend the offender - namely, the tenant who allegedly stole the electricity, and that failure to do so gives rise to an inference of possible complicity between TNB and the said tenant. [34] The arguments in the Defendant’s written submission: “24. The said alleged tampering was said to have been discovered when TNB officers inspected 192-ATAS on 19.8.2022, and found that a bypass of the meter had been created by means of a cable (not TNB’s) connecting TNB’s service wire downstairs to an installation at 192-ATAS upstairs. The only action according to TNB on that day in relation to 192-ATAS was to disconnect the bypass but not the supply proper.