Tenaga Nasional Berhad v Evermal Industry Sdn Bhd (J-02(NCVC)(W)-1991-09/2018)

For the purpose of this judgment, the parties will be referred to as they were in the High Court. The Background Facts [3] The defendant is a company that operates a factory manufacturing plastic packaging products located at Lot PTD 8820, Evermal (Low Kim Teck), Jalan Johor, Batu 33, 82000 Pontian Johor. The factory was constructed sometime in the year 1999 and 2000 with a TNB sub-station located on a plot of land outside the factory’s perimeter fence.

The sub-station was constructed by Keng Leng Construction Sdn Bhd (KLC) and the construction was completed in 2000 after 8 months. On 19.12.2013 (“Inspection Day”), a team of inspectors from Tenaga Nasional Berhad (“TNB”) and Suruhanjaya Tenaga (“ST”) conducted an inspection at the sub-station. It was discovered that there was evidence 3 | P a g e of a meter tempering at the Defendant’s meter which resulted in lower readings of the factory’s actual electricity consumption.

The sub-station has three (3) rooms comprising of the TNB transformer room, TNB metering room and the Defendant’s switch-gear room. The third room which is the switch gear room belongs to the Defendant, the keys to this room were kept by the Defendant. The switch gear room was opened by the Defendant for the inspection team to enter on the inspection day. The TNB metering room was locked and the Plaintiff had to use a cutter to cut the padlock to be able to conduct the inspection.

Tests were carried out in the switch gear room and when the readings were compared there were inconsistencies. When the electricity supply was shut down, there were 3 CT Asing with a ratio of 200/5A found inside the switch-gear unit, where the wiring for the 3 CT Asing were connected to the red, yellow and blue phases. The CT meter with the ratio of 75/5A was found not connected to the meter as it should have been. The inspection on 19.12.2013 which began at around 8:30am lasted until around 10pm.

On 25.2.2014, the officers from both TNB and ST made a 2nd trip to witness the dismantling of the 3 old CT 75/5A and the 3 CT Asing. They were later replaced with the 3 newly purchased CT 75/5A. The 3 old CT 75/5A and 3 CT Asing were then confiscated by the TNB’s officers in the presence of ST’s officers. 4 | P a g e The High Court [8] The learned JC was satisfied that TNB had proven on a balance of probabilities that there was tampering and that it had suffered some element of loss in revenue. However, the learned JC was of the considered view that Evermal had succeeded to challenge TNB’s assessment of its loss of revenue and that TNB failed to prove on a balance of probabilities its claim. He awarded what he described as ‘hybrid nominal damages’ of RM500,000.00. The learned JC explained that the sum awarded is classified as nominal as it is less than 10% of the amount claimed.

Aggrieved with the decision both Evermal and TNB appealed. The Appeal [10] Before us both parties submitted on liability and quantum. Briefly, learned counsel for the plaintiff argued that the plaintiff's claim is a civil claim for loss of revenue made pursuant to a statute and not a claim for damages as in contract or tort. The plaintiff's claim for loss of revenue and expenses is specifically and clearly provided under Section 38 of Electricity Supply Act 1990 (‘ESA’).

The claim for loss of revenue may be made based upon an estimation as decided by the Court of Appeal in the case of Tenaga Nasional Bhd v Bright Rims Manufacturing Sdn Bhd [2015] 1 CLJ

5 | P a g e [12] Learned counsel for Evermal argued that the claim was not particularised and in support cited two cases that is, of Tenaga Nasional Bhd v lchi-Ban Plastic (M) Sdn Bhd & Other Appeals [2018] 3 CLJ 557 and Tenaga Nasional Bhd v Dunia Raya Enterprise Sdn Bhd (2016) 6 CLJ 751. Learned counsel for Evermal argued that TNB failed to particularise the claim and that they have asked for the particulars in 2016 and challenged the calculation of the damages. [13] After hearing submissions by both parties we stood down to deliberate. After deliberation this Panel was informed by learned counsel for Evermal that they were prepared not to proceed with appeal no. 2028 if the Court is minded to dismiss appeal no. 1991. Learned counsel for the Respondent left it up to this Panel’s discretion. [14] On that basis we unanimously dismissed appeal no. 1991 with costs of RM10,000 subject to allocator. With regards to appeal no. 2028 because of the concession given by learned counsel for Evermal that if appeal no. 1991 is dismissed they will not pursue on liability and quantum. In the circumstances, and for the reasons stated, the appeal no. 2028 was struck out with no order as to costs. Sgd (HASNAH MOHAMMED HASHIM) Judge Federal Court, Malaysia Putrajaya Date: 10.12.2020 6 | P a g e Counsel for the Appellant for Appeal No.1991 For the Respondents for Appeal No. 2028 Izatunlina Jamaluddin Mohd Amierul Sharafi Syafiqah Md Shafie Messrs Othman Hashim & Co. Advocate and Solicitors Jalan Ipoh, 51200 Kuala Lumpur, Federal Territory of Kuala Lumpur Counsel for the Appellant for Appeal No. 2028 For the Respondents for Appeal No. 1991 Raw Kim Hwa Nashvinder Singh Gill Gurdit Singh Yang Tek Yeh Messrs C.F. Wong & Co Advocate and solicitor 48, Jalan Susur Kulai 5, Taman Nam Tak, 81000 Kulai,