Tenaga Nasional Berhad v Kilang Plastik Weyip Sdn Bhd (JA-12B-70-11/2017)

The reference to the parties in this judgment will be based on their original positions at the Sessions Court, Johor Bahru.

This is an appeal filed by the plaintiff (TNB). As it was dissatisfied with the quantum of damages allowed by the Sessions Court Judge (hereinafter ‘SCJ’) which was far lesser than what the plaintiff had pleaded/claimed, the plaintiff contended that the SCJ had gravely erred in her finding of fact in coming to her decision on the awarded judgment sum.

The defendant did not file an appeal or cross-appeal against the SCJ’s finding that the defendant was liable to pay the losses suffered by the plaintiff.

On 19.4.2018, this Court allowed the plaintiff’s appeal and set aside part of the SCJ’s decision, particularly in relation to the judgment sum awarded and substituted it with the amount based on the plaintiff’s claim. The reasons for the decision are set down as below.

The plaintiff’s claim is essentially premised on the fact that there was meter tampering committed at the defendant’s premises at No. 16, Jalan Riang 21, Taman Gembira, 81200 Johor Bahru, Johor. On 15.11.2011, the plaintiff’s employees went to the defendant’s premises for a routine inspection and discovered that the meter installed at the defendant’s premises had been tampered with. The meter was then Page 3 of 8 rectified by the plaintiff’s employee(s). On 26.2.2015, the plaintiff issued a statutory demand notice to the defendant claiming a sum of RM829,430.56 (inclusive of RM500.00 for the costs of the meter and other charges) pursuant to ss. 38(3), (4) and (5) of the Electricity Supply Act 1990 (see Rekod Rayuan pp.224-226). The estimated loss was calculated between the period 9.4.2008 and 15.11.2011.

On 1.6.2015, the plaintiff through its solicitors issued a demand notice to the defendant claiming the said amount. The defendant failed, neglected and/or omitted to pay the said sum. The plaintiff then brought an action against the defendant at the Sessions Court.

The defendant denied the meter tampering was caused by the defendant. The defendant denied that the amount claimed by the plaintiff was accurate or correct because on 11.7.2014 the plaintiff had made a claim for a sum of RM1,213,432.82 against the defendant based on the same period calculated for the plaintiff’s estimated losses. There was a vast difference between the previous claim and the present claim even though the two claims were calculated based on the same period as the plaintiff’s estimated losses. The defendant also denied that it received the statutory demand from the plaintiff. The defendant put the plaintiff to strict proof of its claim.

At the Sessions Court, the SCJ made a finding that the defendant was only liable to pay a sum of RM54,111.33. The defendant did not file any appeal against the SCJ’s decision. The defendant did not challenge Page 4 of 8 the SCJ’s decision that the defendant was liable for the plaintiff’s losses for only RM54,111.33.

The SCJ’s reasons in coming to her finding that the defendant was only liable to pay the amount of RM54,111.33 are perplexing. In her written grounds of judgment, the SCJ took into account the billing month under bill dated 6.2.2009 as her basis for awarding the judgment sum, and she decided that the plaintiff could prove its losses for that particular month only (see pp. 15-16 of Rekod Rayuan Tambahan).

It is hard to comprehend the reasoning of the SCJ’s decision. On one hand, the SCJ stated that it was unfair for the defendant to be responsible for the backdated claims of the plaintiff without knowing the actual date of the tampering of the meter (see paras (A) and (B), pp 13- 14 of Rekod Rayuan Tambahan). On the other hand, the SCJ was able to find that the losses for one particular month of the plaintiff’s claim were proved which was the billing month for the bill dated 6.2.2009.

In the said billing month, the SCJ’s calculation in arriving at the amount of the judgment sum was baffling. The SCJ did not state how she derived the sum of RM54,111.33 in her judgment.

The counsels for the parties agreed that the sum of RM54,111.33 was very likely derived from two figures for the said billing month based on the exhibits before the Court. The calculation is as below: RM31,120.20 + RM22,991.13 = RM54,111.33

This Court noticed that the amount stated in the SCJ’s written judgment for the amount ‘Jumlah bil sebenar’ is wrong. The SCJ stated ‘RM31,303.80’ (see p. 16 of Rekod Rayuan Tambahan), whereas, the correct amount should be RM31,120.20 (see p. 215 of Rekod Rayuan – line ‘Tarikh Bil’ 6.2.2009).

The sum of RM31,120.20 is the amount after adjustment using the averaging method of calculation. The actual billing for the said billing month was RM8,129.07. Therefore, the defendant only paid RM8,129.07 for that particular month.

After taking into account the adjusted monthly billing for the said billing month and the amount which the defendant had paid for that said billing month, there is a difference of RM22,991.13 (RM31,120.20 - RM8,129.07) being the short payment for the said billing month which is considered as the loss the plaintiff had suffered for the said billing month.

The SCJ, instead of allowing the claim of RM22,991.13 as short payment based on the estimated loss for the said billing month, took the estimated loss amount (RM22,991.13) plus the adjusted amount of billing (RM31,120.20) for the said billing month as the proved amount for the plaintiff’s claim for the said billing month.

The SCJ’s reasoning in arriving at the amount of RM54,111.33 as the plaintiff’s loss was gravely wrong in fact and law.

The SCJ’s reasoning in her written judgment is inconsistent with the evidence before her. PW5/SP5 (the plaintiff’s witness) used the said billing month as an example as to how he had calculated the plaintiff’s Page 6 of 8 monthly losses. He used the said billing month to illustrate his calculation (see PW5’s testimony, pp. 41-42 of Rekod Rayuan, especially Q&A number 23).

The SCJ accepted PW5’s evidence but failed to appreciate his evidence on the calculation for the said billing month was merely given as an example of the approach he took for calculation of the entire period claimed by the plaintiff which is between the period 9.4.2008 (start from the monthly bill dated 7.5.2008) and 15.11.2011.

Based on PW5’s evidence, the total amount short in the monthly billings for the said period is RM828,930.56 (excluding RM500.00 as charges). Hence, the sum deemed by the plaintiff as damages was RM828,930.56 plus RM500.00 for the plaintiff’s charges. There is no reason given by the SCJ for accepting PW5’s evidence on the calculation for the said billing month but not for the rest of the period.

This Court had the opportunity to scrutinize the exhibits (particularly at pp. 215-221 of the Rekod Rayuan) and finds that the evidence supports the plaintiff’s claim for losses for the entire period claimed by the plaintiff.

The plaintiff adopted the averaging method to calculate its losses, which the plaintiff was entitled to do so. The losses are based on an estimated calculation which is accepted in the court of law (see Tenaga Nasional Berhad v Bright Rims Manufacturing Sdn Bhd [2015] 1 CLJ 521; Tenaga Nasional Bhd v AWP Enterprise (M) Sdn Bhd [2015] 1 CLJ 400) as long as the calculation is not manifestly unreasonable, excessive or wrong. After having perused the evidence before this Page 7 of 8 Court, this Court finds the calculation and the method adopted for the calculation of the plaintiff’s estimated losses is not unreasonable, excessive, wrong or arbitrary.

It has been accepted in the court of law in our country that in cases of TNB’s meter tampering the estimated loss could be calculated to begin from the time as indicated in the records of the pattern of the consumption of electricity. TNB has the discretion based on its records to select the month for the back charge period until the date of rectification of the tampered meter. The month which TNB selected to begin with the back charge could not be arbitrary, it must be justifiable and within a reasonable period. In this instant case, the back charge period was only approximately three years and seven months (from 9.4.2008 to 15.11.2011). The months selected and used for the calculation of averaging method were between 11.9.2012 and 1.12.2012, and the selection is also discretionary. It would suffice for TNB’s witness to explain in evidence as to why those months were selected. It would then be for the court to decide whether TNB has acted arbitrarily or otherwise.

Based on the documentary evidence and PW5’s explanation in evidence, this Court finds the plaintiff has proven its claim and that the correct amount to be awarded for damages in the plaintiff’s case ought to be the sum of RM828,930.56 and RM500.00, not the amount as awarded by the SCJ.

With regard to the issue of meter tampering, it was not an issue before this Court because this appeal is on quantum only.

Based on the above reasoning, this Court set aside the SCJ’s decision on the awarded damages and substituted it with a judgment sum of RM829,430.56 to be entered against the defendant and interest of 5% per annum to be calculated on the said amount from the date of the SCJ’s decision (10.10.2017) to the date of full settlement and costs of RM5,000.00 for the appeal and costs of RM10,000.00 for the court below, both costs are subject to allocator fees, to be paid by the defendant to the plaintiff. -Sgd- …………………………………………. (CHOO KAH SING) Judge High Court, Johor Bahru Counsel for the plaintiff / : Izzatunlina appellant Tetuan Othman Hashim & Co. Counsel for the defendant / : Abd Rahim Ali respondent Tetuan Rahim Aidil & Partners