Tenaga Nasional Berhad v NG JUN FOH (JD-A72NCvC-32-04/2022)

This writ action, in essence relates to the Plaintiff's Claim against the Defendant under Sections 37, 38(3), (4) & (5) of the Electricity Supply Act 1990 (ESA 1990) for loss of revenue and expenses amounting to RM52,441-10 together with interest and costs resulting from alleged tampering with the electricity meter at the Defendant's premises.

For the record, initially this case was heard by the previous Magistrate, Puan Salina binti Omar. However, the previous Magistrate got transferred and I was subsequently directed to take over the hearing of this case. No application was made by any party for this case to be retried (de novo). Therefore, I continued to hear this matter partly from where it was left by my predecessor.

The Plaintiff is a limited liability company supplying electricity and is incorporated under the Companies Act 1965 and has its registered address at the Pejabat Setiausaha Syarikat, Tingkat 2, Ibu Pejabat Tenaga Nasional Berhad, No. 129, Jalan Bangsar, 59200 Kuala Lumpur.

The Defendant, meanwhile, is a registered user through account no. 6352220715887308 for the premise located at No.1, Jalan Pertama 1, Taman Pertama Jementah, 85200 Segamat, Johor (hereinafter referred to as “the Defendant’s premise”).

On 3rd February 2021, the Plaintiff through their inspection team (namely SEAL team) conducted an inspection of the meter/meter 3 installation at the Defendant's premise and as a result of the inspection, the Plaintiff’s inspection team found that there was tampering with the meter/meter installation as follows:- i. The meter terminal seal is missing; ii. The meter cover rivet is tampered with; iii. The TNBM security sticker on the side of the meter cover is missing; and iv. It was found that the voltage circuit link screws for the red and blue phases were loosened and glued inside the meter, causing the meter to not be able to record the correct reading.

The inspection team also conducted an accuracy test and the test results showed that the meter failed to record the accurate reading with an average error of -70.356%.

The inspection team recorded all the irregularities that existed in the meter/meter installation during the inspection and the corrective actions were taken as per stated in the Inspection Form. The tampered meter was then replaced with a new meter and a police report was lodged (P2).

In accordance with Section 38(3) of the ESA 1990, the Plaintiff has calculated the loss of revenue and expenses based on an error of -67.36% (after deducting the 3.00% error) and found that the total loss of revenue and expenses and related charges incurred by the Plaintiff amounted to RM52,441-10 for the period from 28th February 2016 until the date of inspection, which is 03rd February 2021.

Through Notices of Demand dated 22nd April 2021 and 24th June 2021, the Plaintiff demanded the Defendant to pay the said amount to the Plaintiff. However, the Plaintiff claimed that no payment was received from the Defendant and hence the filing of this action in pursuant to Section 38(5) ESA 1990.

At trial, the following witnesses were called by the Plaintiffs and testified to give evidence:- a) Nazri bin Ahmad (PW1) : WSSP-1 b) Mohd Zulkhairry bin Zulkipli (PW2) : WSSP-2 c) Nurul Syafawani binti Razali (PW3) : WSSP-3 d) Mohd Rasul bin Mohd Razali (PW4) : WSSP-4

As for the Defendant, the Defendant himself testified during trial as the Defendant’s only witness (DW1).

From their submission, it can be seen that the Plaintiff places its reliance on Section 37 and 38 of the ESA 1990 and submitted that if there were any premises, (i.e. the Defendant's premises) which in its opinion proves that an offence under subsection 37(1), (3) or (14) has been committed by the Defendant (i.e. tampering with the installation of the Defendant's meter/meters), TNB may require the Defendant, as the ‘consumer’ within the ambit of Section 2 of the Act to pay any loss of revenue caused by the offence committed under subsection 37 of the Act.

The Plaintiff submits that, through the evidence of PW1 and PW2 as well as the documents submitted (mainly the photographs P1), it clearly showed that there had been tampering with the meter at the Defendant's premises which had resulted in the meter failing to record the actual electricity usage in the premise.

The Plaintiff claimed that the Defendant has failed to refute the evidence found on the meter/meter installation at the Defendant's premises and merely made a bare denial that the meter at the Defendant's premises had failed to record the true reading. The Plaintiff further argued that no material evidence has been presented that the error obtained through the manual test conducted on 03rd February 2021 was wrong and inaccurate. The Plaintiff also argued that at all material times, the Defendant has been unjustly enriched by the tampering at the Defendant’s premise.

On the calculation of the loss of revenue, it is the Plaintiff's submission that the calculations prepared and carried out by SP3 which was certified and verified by SP4 were made based on the Guidelines issued by the Energy Commission which allow the licensee (i.e. the Plaintiff) to calculate the loss of revenue and expenses for the past 5 years if no 'sudden drop' is obtained.

The Plaintiff further argued that the Comparison Graph of Average Daily Consumption (P7 in Page 42 of Bundle C) clearly shows the absence of 'sudden drop' in the electricity consumption at the Defendant's premises. Therefore, the method used by SP3 which is the error method (kaedah ralat kejanggalan) and verified by SP4 is the correct method based on the guidelines set by the Energy Commission; and remained indisputable by the Defendant.

The Plaintiff too, submitted that the calculation of the period of loss of revenue (from 28th February 2016) is reasonable and in accordance with the Energy Commission Guidelines by placing its reliance on the case of Tenaga Nasional Berhad v Ichi-Ban Plastic (M) Sdn Bhd & Other Appeals [2018] 3 CLJ 557. [18] In short, the Plaintiff submitted that the tampering of the meter/meter installation in the Defendant’s premise has been proven and that they too have successfully proven that the calculation method used was fair based on the provisions of the law and guidelines approved by the Energy Commission; and that the Defendant has failed to refute the findings of the inspection and/or the Plaintiff's calculation method in this case. Defendant’s Submission [19] On the other hand, the Defendant denies any tampering to the meter/meter installation due do to the main reason that the readings of the meter consumption before the inspection and the reading on the new meter after the inspection shows no significant difference. According to the Defendant, the Defendant’s electric bills were consistent between RM 300-500/month and that there were no sudden drops in the meter reading/consumption. [20] Amongst others, the Defendant contended that no forensic, expert reports, or even the old meter were produced by the Plaintiff to show that the meter was actually tampered with. [21] Further, the Defendant submitted that the Plaintiff’s inspection on the Defendant’s premise on 3rd February 2021 was done not in accordance with the Plaintiff’s Standard Operating Procedure (SOP) when the inspection was done without the presence of the Defendant’s representative in the said premise, giving rise to the question of what was actually done by PW1 and PW2 in the Defendant’s premise during the said inspection, or a doubt of whether the inspection was even done or not. To Defendant, this bolsters the fact that the bill/meter reading shows no difference. EVALUATION AND FINDINGS BY THE COURT [22] Apart from many other issues raised by both the parties, the trial which took place for around 8 days was mainly to ventilate the following issues which are to be decided by this Court: i. Whether there was tampering of meter/meter installation in the Defendant's premise; ii. Whether the Plaintiff is entitled to claim the total loss of revenue amounting to RM52,441-10 against the Defendant; iii. Whether the Plaintiff's claim or a substantial part of the claim is time-barred under the Limitation Act 1953. [23] In order therefore to adjudicate the matter, it is of utmost importance for this Court to determine the direction of which the balance of probabilities tilts. After presenting the facts and, if disputed, the evidence provided by each party, a plaintiff is deemed to have proven his case if the balance of probabilities leans in his favor. It is also trite that that it is not the quantity of facts and evidence that matters, but rather the importance assigned to them when determining which direction, the balance of probabilities tilts. Principles of Law Applicable on The Plaintiff’s Claim [24] The Plaintiff's cause of action against the Defendant is for loss of revenue under s.38(3), (4) & (5) of the ESA 1990 where the Plaintiff is entitled to claim loss of revenue suffered as a result of the tampering through civil proceedings in Court when it is found that there has been an offence of tampering with the installation of the meter under s.37(1), (3) and (14) of the Act. [25] For convenience, the relevant provisions are herein reproduced:

Offences

Any person who tampers with or adjusts any installation or part thereof or manufactures or imports or sells any equipment so as to cause or to be likely to cause danger to human life or limb or injury to any equipment or other property commits an offence and for each such offence shall, on conviction, be liable to a fine not exceeding one million ringgit or to imprisonment for a term not exceeding ten years or to both.

Any person who in any manner dishonestly—

abstracts electricity;

consumes electricity;

uses electricity;

alters the index of any meter or other instrument used on or in connection with any installation of any supply authority or any licensed installation for recording the output or consumption of electricity; or

prevents any such meter or instrument from duly recording the output or consumption of electricity, commits an offence and shall, on conviction—

(A) be liable:

in the case of a domestic consumer, to a fine of not less than one thousand ringgit and not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both; and

(ii) in the case of a non-domestic consumer, to a fine of not less than twenty thousand ringgit and not exceeding one million ringgit or to imprisonment for a term not exceeding five years or to both; and

(B) be liable for the second and subsequent offence:

in the case of a domestic consumer, to a fine of not less than five thousand ringgit, and not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both; and

(ii) in the case of a non-domestic consumer, to a fine of not less than one hundred thousand ringgit and not exceeding five million ringgit or to imprisonment for a term not exceeding ten years or to both.

Any person who damages or removes any meter or other instrument used on or in connection with any licensed installation, for recording the output or consumption of electricity commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding two years or to both.

Disconnection of supply of electricity

The licensee may require the consumer to pay him for the loss of revenue due to the offence committed under subsections 37(1), (3) and (14) and any reasonable expenses directly incurred by the licensee under this section including expenses incurred in respect of reconnection of electricity in the manner as have been directed by the Commission: Provided that and subject to subsection (4), if the licensee does not proceed with a claim for such loss of revenue and expenses in court, the licensee may only claim against the consumer for the said loss of revenue and expenses for a period not exceeding six months retrospectively from the date the offence was discovered under subsection (1).

A written statement by an employee of the licensee duly certified by the licensee or any person authorized by the licensee specifying—

the amount of loss of revenue or the reasonable expenses incurred by the licensee; (aa) the manner of calculation of the loss of revenue and items of expenses; and

the person liable for the payment thereof, shall be prima facie evidence of the payment that has to be made by the consumer under subsection (3) and such written statement shall be notified to the consumer within fourteen working days or any period as extended with the written approval of the Commission after the disconnection.

The amount stated in the written statement under subsection (4) shall, within the period specified in the statement, be due and payable to the licensee and in default of payment such amount shall be recoverable by civil action in a court. [26] Based on the facts adduced, it was undisputed that the Defendant is indeed the registered consumer in the said premise and thus, the Defendant undoubtedly falls within the definition of a “consumer” under s.2 of ESA 1990. [27] The position of law on the Plaintiff’s claim is settled in Tenaga Nasional Bhd v Ichi-Ban Plastic (M) Sdn Bhd and other appeals [supra] that TNB’s statutory right to recover its loss of revenue under s 38(3) of the Act is not dependent on the consumer’s conviction of an offence under s 37(1), (3) or (14) of the Act and that a written statement by an employee duly certified by TNB or by person authorised by TNB stating the amount of loss of revenue or the expenses incurred by TNB and the person liable for the payment thereof shall be prima facie evidence of the payment that has to be made by the consumer under s 38(3) of the Act. Whether There Was Tampering of Meter/Meter Installation in the Defendant’s Premise [28] In determining such, this Court bears in mind the judgment of Court of Appeal in Tenaga Nasional Berhad v. Asia Knight Bhd (previously known as Pahanco Corp Bhd) [2018] 5 CLJ 227; [2017] 5 MLJ 681 as such: [11] In our considered opinion, the central issue for determination relates to the question of whether the plaintiff had succeeded in proving that the meter installation was tampered. On a perusal of the appeal record, we are satisfied that there is uncontroverted evidence to show that the meter installation had been tampered. The discovery of the foreign copper object which was inserted in the meter is proof of the fact of tampering. We agree with the submission of learned counsel for the plaintiff that the evidence produced by the plaintiff's witnesses were consistent and credible. It was also corroborated by the production of the photographs, the 'borang siasatan perjangkaan LPC MV/HV', 'surat pemakluman semakan meter', 'surat pemberitahuan pengambilan barang kes' and police report. In this connection, we have perused the learned judge's written judgment and note that the learned judge did not make any finding that there was no tampering of the meter. Instead, the learned judge took the position that there was no evidence to prove that the defendant had access to the meter installation or had tampered with the meter. In other words, there was a non-finding on the question of whether the meter was tampered, which in our considered view is a serious misdirection on the facts and on the law. We also find support for our view in the Federal Court decision which held that only a subjective finding of the plaintiff's employee is required to prove tampering WRP Asia Pacific Sdn Bhd v. Tenaga Nasional Bhd (supra). On the totality of the evidence, we are of the view that on a balance of probabilities, the plaintiff had succeeded in proving that the meter was tampered. [12] Be that as it may, the learned judge also took the view that the defendant could not be liable for the loss of revenue as it was not proved that the defendant had access to the meter room or had tampered with the meter. In our considered view, sub-s. 38(3) of the EA 1990 does not require the plaintiff to prove that the perpetrator of the tampering was the defendant or that the defendant had access to the meter installation before a claim for loss of revenue can be made by the plaintiff. We agree with the argument of the plaintiff that the plaintiff's entitlement to claim for the loss of revenue is a statutory right conferred on the plaintiff under sub-s. 38(3) read together with sub-s. 38(1) of the EA 1990. We find support for our view in WRP Asia Pacific Sdn Bhd v. Tenaga Nasional Bhd (Judicial Review Application No. R1-25-24-2010; Tenaga Nasional Bhd v. Dunia Raya Enterprise Sdn Bhd [2015] 6 CLJ 751 (CA); Tenaga Nasional Bhd v. Ternakan Air Wui Kyee Sdn Bhd & Another Appeal [2015] 5 CLJ 955 (CA); Tenaga Nasional Bhd v. Empayar Canggih Sdn Bhd [2013] CLJU 637; [2013] 1 LNS 637; [2014] 8 MLJ 280; Tenaga Nasional Bhd v. AWP Enterprise (M) Sdn Bhd [2015] 1 CLJ 400; [2015] 3 MLJ 268 (CA); Tenaga Nasional Bhd v. Perniagaan Heng Thye Sdn Bhd (Civil Appeal No. K-04(NCVC)(W)-59-02-2014). [29] Similar approach was applied by the Court of Appeal in Thomas Thomas V. Tenaga Nasional Bhd [2017] 4 CLJ 340; [2018] 5 MLJ 831 as such: [13] In any event, 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. The fact is, 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 consumer under s. 38(3) to (5). Section 38(1) speaks of "an offence has been committed" and not "an offence has been committed by the registered consumer". [14] To require TNB to prove that the offence of tampering was committed by the registered consumer before it could succeed in its claim for loss of revenue would lead to an absolute absurdity whereby the registered consumer will escape liability if he is "ingenious" enough to engage a third party to damage or tamper with the meter in preparation for his refusal to pay for any loss of revenue suffered by TNB resulting from the tampered or damaged meter. [30] Hence, from the above-quoted passages, it should be distinguished that the issue should rightfully be whether there was any tampering done in the consumer’s premise and not whether the consumer or anybody else who caused the tampering in the consumer’s premise. The latter could be an issue in a criminal suit if pursued by TNB. [31] This position was also similarly observed in Oscar Canary Sdn Bhd v. Tenaga Nasional Berhad [2019] CLJU 811; [2019] 1 LNS 811; [2019] 5 MLJ 502 as Court of Appeal decides such: [22] On the factual matrix and authorities cited, the relationship between the plaintiff and defendant was contractual in nature. On top of that, the plaintiff 's entitlement to claim for loss of revenue is a statutory right conferred on the plaintiff under sub- s 38(3) of the Act. It has been held that there is no legal requirement to prosecute and convict the defendant before the plaintiff can make a claim for loss of revenue against the defendant. It is also not necessary for the plaintiff to prove that it was the defendant who had tampered the meter or that the defendant had no access to the meter installation. It is sufficient for the plaintiff to show that the meter has been tampered. It has been held that only a subjective finding of the plaintiff 's employee is required to prove the tampering: WRP Asia Pacific Sdn Bhd v. Tenaga Nasional Bhd [2012] 4 CLJ 478; [2012] 4 MLJ 296; Tenaga Nasional Bhd v. Ichi-Ban Plastic (M) Sdn Bhd and other appeals [2018] 3 CLJ 557; [2018] 3 MLJ 141. [emphasis added] [32] In that context, the burden of proving will be on the balance of probabilities as decided in Marwin Industries Sdn Bhd v. Tenaga Nasional Berhad [Civil Appeal No. J-02(NCVC)-3147-12/2011]. [33] Premised on that, this Court further analyses the evidences and testimonies of the witnesses in deciding whether there was tampering of meter/meter installation in the defendant’s premise. [34] From the evidences adduced, it can be seen that as a matter of fact, on 3rd February 2021, the Plaintiff’s through the SEAL team (namely PW1 dan PW2) conducted an inspection of the meter/meter installation at the Defendant's premise and as a result of the inspection, PW1 and PW2 confirms the following: i. A physical test/observation was conducted on the meter/meter installation in the Defendant’s premise and found that the meter terminal seal, TNBM security sticker and meter cover rivet was tampered with; ii. PW2 further conducted current reading and found out that the reading was normal; iii. He then proceeded to do a voltage test and discovered that there was no symbol of r and b for red and blue phase and the meter indicated the “error code FA-04”. He further discovered that voltage reading for blue and red phase was tampered with when the normal reading should be as per shown by yellow phase; v. This indicates a tampering in the blue and red phase where PW2 proceeded to examine the meter installation where he ascertained that the voltage circuit link screws for the red and blue phases were loosened and glued inside the meter, causing the meter to not be able to record the correct reading; iv. An accuracy test was then conducted and the test results showed that the meter failed to record the accurate reading with an average error of -70.356%; v. Throughout the inspection, PW1 was documenting the evidences by way of photographs which can be seen in P1; vi. The meter installation was then replaced with a new meter which eventually showed normal voltage reading upon inspection. [35] These were corroborated by the following exhibits: i. Photographs that were taken by PW1 – [Exhibit P1(1-21) in page 4-24 of Bundle C]; ii. Police report which was lodged by PW1 – [Exhibit P2 in page 25 of Bundle C]; iii. PW2 has recorded the findings of the inspection on the Inspection Form [Exhibit P3 in page 3-5 of Bundle B]; iv. PW4 submitted the notifications (forms and letters) dated 3.2.2021 [Exhibit P4, P5 & P6 in page 6, 7 & 8 of Bundle B]. [36] PW2 in explaining his findings and the said errors and irregularities found on the meter/meter installation in the Defendant’s premise during his inspection confirms as following: Examination of PW2 (page 99-101 of NOP) PP: Baik Tuan. En. Zul, kita akan pergi cepat sikit. Boleh tak dalam gambar ini dari muka surat 4 hingga 24. Yang pertama, En. Zul boleh terangkan kepada Mahkamah melalui gambar, bentuk-bentuk usikan yang En. Zul jumpa waktu pemeriksaan dijalankan? SP2: Okay, yang pertama kita pergi kepada muka surat 8. Bacaan voltan bagi fasa merah menunjukkan bacaan 2.4 volt dan bacaan yang sepatutnya meter rekod adalah pada muka surat 9 yang ini voltan fasa kuning pada paparan meter adalah 238.2. sepatutnya voltan lain juga 238. Rounding 238, 239. Dan muka surat 10 menunjukkan bacaan fasa biru 2.1 volt. Dan ini adalah satu kejanggalan yang dijumpai sebelum meter dibuka. Dan daripada penemuan bacaan voltan ini, kita dapat syak ada kekurangan bacaan yang direkodkan oleh meter. Sepatutnya bacaan voltage untuk meter adalah 238 dan sekitarnya hingga 240. Tetapi untuk meter ini, dia merekodkan untuk fasa merah 2.4 volt, fasa biru 2.1 volt. Ini menunjukkan meter tidak merekodkan bacaan yang sebenar. ….. PP: Sekejap En. Zul, jadi boleh jelaskan fasa yang terlibat dalam kes ini? SP2: Okay, fasa yang terlibat dalam usikan ini adalah fasa merah dan biru. Boleh rujuk pada muka surat 13. Dalam muka surat 13, gambar menunjukkan voltan yang direkodkan hanya fasa yellow. Sebab saya tengok ada huruf ‘Y’ ditengah-tengah itu. Dan keadaan sebenar, sepatutnya dia ada “R,Y,B”. H: Hanya huruf Y? SP2: Kalau kita tengok dekat gambar ini, meter ini merekodkan hanya huruf Y sahaja yang ini yellow, fasa kuning. H: Sepatutnya? SP2: Sepatutnya dia merekodkan 3 bacaan. R bagi red. Y bagi yellow. B, blue. Tapi semasa kami melakukan pemeriksaan, fasa R dan B tidak direkodkan. That means meter ini tidak merekodkan bacaan fasa R dan B, iaitu merah dan biru. …. PP: Okay, selain daripada itu, boleh En. Zul jelaskan bentuk kejanggalan yang ada di pepasangan meter lama Defendan? SP2: Dikuatkan lagi dengan muka surat 4 yang ini paparan diagnos FA-04. …. PP: Boleh En. Zul jelaskan code yang En. Zul maksudkan tadi itu? SP2: Untuk error code FA-04 adalah usikan berkaitan litar voltan. That means meter akan trigger code ini apabila litar voltan diusik ataupun kejanggalan pada litar voltan yang dilakukan dengan paksaan. PP: Okay, maksudnya tadi dalam gambar 14 ini, code ini akan tunjuk sekiranya usikan berlaku pada litar voltan? SP2: Betul. [37] Based on the above, it is clear to this Court that the meter installation at the Defendant’s premise has been tampered with. [38] Interestingly, another point raised by the Defendant in this case is the absence of any representatives of the Defendant during the inspection, raising a doubt as to what was actually done by PW1 and PW2 in the Defendant’s premise during the said inspection, or a doubt of whether the inspection was even done or not. This can also be confirmed in the forms and letters (Exhibits P4, P5 and P6). [39] To this, PW2 agreed that the inspection of the meter/meter installation was continued despite the absence of the Defendant at the premise due to the reason that the meter/meter installation at the Defendant's premises was outside. Examination of PW2, page 75 of NOP PD: Pemilik rumah ataupun wakilnya Tuan. Saksi setuju Tuan. Setuju atau tidak saya cadangkan bahawa kamu boleh buat pilihan sama ada nak teruskan pemeriksaan tanpa saksi awam ataupun tunda pemeriksaan sementara ada saksi tuan rumah? SP2: Tak setuju. Examination of PW2, page 105 of NOP SP2: Untuk SOP kami, apabila kita boleh akses meter dan dalam keadaan munasabah, selagi meter itu tidak berada di dalam premis dan premis itu berkunci, kita boleh terus proceed untuk melakukan procedure kes usikan pepasangan meter. PP: Secara ringkasnya, selagi mana meter ada di luar dan mudah diakses oleh pasukan TNB, SEAL, pemeriksaan boleh dijalankan. Macam itu ke? SP2: Betul. [40] In the Plaintiff’s support, this Court takes notice of para 4.2.1 of Garis Panduan Prosedur Tuntutan Kerugian Hasil (EC’s Guidelines) which provides as such:

4.2.1 Semasa pemeriksaan dan ujian dijalankan oleh pekerja pemegang lesen, pengguna/pemilik/wakil premis hendaklah hadir bersama. Walau bagaimanapun, bagi kes-kes tertentu di mana pepasangan dan/atau meter ditempatkan di tempat-tempat awam seperti laluan kaki lima (five foot main), bilik salur penaik elektrik (electrical riser room), tiang lampu dan sekiranya pengguna/pemilik/wakil premis enggan memberi kerjasama dan seumpamanya, pemegang lesen boleh meneruskan pemeriksaan tanpa kehadiran mereka. [41] This, to this Court was not prejudicial and did not affect the Plaintiff's proof of liability in this case. In any event, it is clear that there is nothing under the ESA 1990 and/or the regulations under the Act that requires a registered consumer representative and/or a representative of the Premise to be present during the inspection conducted by the Plaintiff. [42] Reference is to be made to para 4.5.7 of EC’s Guidelines in regards to this:

4.5.7 Bagi premis-premis yang mempunyai meter berpusat seperti di kondominium atau sekiranya pengguna/pemilik/wakil premis tiada di premis sewaktu pemeriksaan, salinan Surat Pemakluman Semakan Meter Elektrik oleh pemegang lesen serta borang-borang berkaitan hendaklah diletakkan di peti surat atau di pintu rumah pengguna. [43] Accordingly, a copy of these documents was left at the Defendant's premises on 03rd February 2021 after inspection was done and this was proven through Exhibit P1(21) (refer to page 24 of Bundle C). [44] While this Court recognizes the standing that the EC’s Guidelines remains an administrative guideline for the Plaintiff’s employees, it can be seen that the inspection team had indeed abide by the said guideline and as such, this Court finds no reason to doubt their finding, particularly in regards to the discovery made on the meter/meter installation, despite the absence of the Defendant or the Defendant’s representative. [45] Guidance is taken in the decision and obiter dicta as expressed by Justice Wong Kian Kheong JC (as His Lordship then was) in Tenaga Nasional Berhad V. Api-Api Aquaculture Sdn Bhd [2015] CLJU 65; [2015] 1 LNS 65 which should be borne in mind of TNB in general as such:

Despite my above decision that the Plaintiff's officer may inspect electricity meters under reg. 7 LSR in the absence of the consumer or the consumer's employee or representative, it is neither prudent nor advisable for the Plaintiff's officer to inspect electricity meters without the presence of the consumer. This is because if the Plaintiff's officer inspects any electricity meter in the absence of the consumer and subsequently discovers tampering of the meters (Discovery) -

the consumer may challenge the truth and credibility regarding the Discovery as has happened in this case. It must be borne in mind that the Discovery may be the basis of a criminal prosecution of the consumer under s. 37(1),

(3)(a) to (e) and (14) ESA. Accordingly, the Discovery should be in the presence of the consumer or its representative; and

if the Discovery is made in the presence of the consumer's employee or representative, there may be evidence of the immediate admission or denial of the consumer regarding the Discovery. The nature of the immediate reaction of the consumer concerning the Discovery may be relevant to -

whether the Plaintiff proceeds to issue a backbill to the consumer or not;

(ii) the decision of the Public Prosecutor (PP) to institute criminal proceedings under, among others, s 37(3) ESA, against the consumer in question; and

(iii) assist the court to decide the issue of whether a consumer has actually tampered with the electricity meter, either in a civil or criminal case. [46] In that context, this Court finds that PW1 and PW2 are reliable witnesses and accordingly, this Court finds no reason to doubt their testimonies. This Court is also of the opinion that sufficient written statement was given to the Defendant via P8 and P9 (refer page 26-38 of Bundle C) as provided in Tenaga Nasional Bhd v Ichi-Ban Plastic (M) Sdn Bhd and other appeals [supra] wherein the contents of the said documents were unrebutted by the Defendant. [47] Thus, to the Plaintiff’s contention that the Plaintiff had met the requirement of ‘prima facie evidence’ as provided under S.38(4) of the ESA 1990, this Court concurs. [48] Further to that, where the evidence of the witnesses is firm and consistent with the findings of tampering, this Court must accept the truth of the evidence given, and as such, for the first issue in question, this Court believes that there was indeed tampering of meter/meter installation in the Defendant’s premise and this was duly proven by the Plaintiff. Whether the Plaintiff is entitled to claim the total loss of revenue of RM52,441-10 against the Defendant [49] In the absence of a clear guideline in the ESA 1990 pertaining to the calculation method of total loss of revenue claim by TNB generally, it is imperative to note that every case is different on its own and thus, the calculation method too is subjective and varies on case to case basis. [50] As such, considering the inherent difficulties which come with claims involving meter tampering, the Federal Court has recognised these and acknowledged that Parliament has left the process of ascertainment of lost revenue calculation to TNB. This is observed in the case of Tenaga Nasional Bhd (TNB) v. Evergrowth Aquaculture Sdn Bhd and other appeals [2021] 9 CLJ 179; [2021] 5 MLJ 937: [89] We agree with TNB that since the ESA 1990 is silent on the methodology to be used by TNB to calculate the loss of revenue it suffered due to meter tampering, Parliament has left the process of ascertainment to TNB because of the difficulties inherent in this type of claim. The same issue was raised in Ichi-Ban (supra) and this is what this court had to say: [71] According to the learned counsel, as the Act is silent on the methodology to be used by TNB to calculate the loss of revenue suffered due to meter tampering, Parliament has left the process of ascertainment to TNB because of the difficulties inherent in these types of claims. It is important to appreciate the reality of the situation under which the claim is made. In a meter tampering case, all the information is with the consumer because the incident takes place at his premises. In most cases, the consumer will be uncooperative. The High Court in the Ichi Ban case (supra) recognised this when it observed as follows: The Legislature has taken cognizance of the fact that in a claim under section (sic) 38(3) "the plaintiff has to work very much in the dark to figure out the loss as all particulars of the actual and real usage of the electricity is with the defendant. ... [86] Reverting to the issues raised relating to the calculation point, due to the nature of the claim, we appreciate that there may be difficulty in obtaining the evidence for the claim under section 38 of the Act. Nevertheless, in our view, it would be unwise for us to use this occasion to say anything which might be taken as specifying or limiting the nature and extent of the evidence necessary to establish a claim for loss of revenue under section 38 of the Act. Where precise evidence is available, as for example if there is a special device to measure the loss of revenue due to tampering of electricity supply, naturally the Court expects to have it, but where it is not the Court must do the best it can. In other words, there could be other evidence in lieu of precise evidence. For example, approximation or estimation may be used provided it is reasonable and fair. This would depend on the quality of the evidence adduced in Court to support that approximation or estimation. In light of what we have said thus far, we find it unnecessary to answer the two questions posed. [51] This is crucial. Considering this, it can be observed that the Plaintiff or TNB in general have adopted the EC’s Guidelines as the approach in calculation for the total loss of revenue in cases involving meter tampering. [52] In the present case, the calculation for the total loss of revenue by the Plaintiff can be seen in P7 (Page 39-43 in Bundle C). PW3 explained that the data entered in the P7 was based on data extracted from the TNB system and PW3 used Excel to prepare the said calculation. [53] Based on the error method (kaedah ralat kejanggalan), PW3 calculated the revenue loss based on the instructions of PW4 where the claim period was from 28th February 2016 until the inspection date on 3rd February 2021 and found that the total revenue loss and expenses incurred by the Plaintiff was RM52,441-10. [54] PW3 during her examination in chief, via her statement WSSP3 explained the process and formula used in order for her to obtain the total amount of loss of revenue as such:

WSSP3 S: Apakah kaedah pengiraan yang digunapakai untuk mengira kerugian hasil dan perbelanjaan tersebut? J: Kaedah yang digunapakai adalah kaedah yang diperolehi semasa pemeriksaan.

S: Siapa yang menentukan kaedah pengiraan mana yang digunapakai bagi mengira kerugian hasil dan perbelanjaan bagi kes ini? J: En. Mohd Rasul.

S: Apakah hasil bacaan yang diperolehi selepas ujian kejituan dilakukan? J: Purata ralat diperolehi seperti berikut :- i) Ralat 1 = - 71.088% Ralat 2 = - 69.858% Ralat 3 = -70.123% ii) Ralat 1 + Ralat 2 + Ralat 3 _______________________ 3 = (-71.088) + (-69.858%) + (-70.123) _______________________ 3 = (-211.069) __________ 3 = - 70.356 [purata ralat adalah -70.36

S: Adakah purata ralat sebanyak -70.36% akan digunakan untuk membuat pengiraan terkurang caj / kerugian hasil perbelanjaan? J: Untuk membuat pengiraan semula, peratusan purata ralat tersebut hendaklah ditolak ralat maksimum sebanyak 3.00%. Jadi ralat yang digunapakai bagi pengiraan kerugian hasil adalah sebanyak -67.36%.

S: Bagaimana cara kiraan untuk mendapatkan amaun kerugian hasil / terkurang caj? J: Cara kiraan adalah mengikut turutan di bawah:- i) Jumlah sebenar kWh = jumlah kWh yang telah dibil / (100% - Peratusan ralat ii) Jumlah kWj terkurang dibil = Jumlah sebenar kWh - jumlah kWh telah dibil iii) Jumlah terkurang dibil (RM) = Jumlah kWh terkurang dibil x kadar tarif pada tempoh kerugian kadar tarif pada tempoh kerugian [55] To clarify, this method is stipulated in para 5.2.2 of the EC’s Guidelines. Applying this formula, PW3 and PW4 have made and approved the calculation respectively month by month from the period of 28th February 2016 – 3rd February 2021 (the date of inspection) which indicates 5 years of back-billing as provided in para 5.3.2 of EC’s Guidelines. The summary of the calculation as to how PW3 and PW4 arrived at the amount of RM52,441-10 as the total revenue loss and expenses incurred by the Plaintiff can be seen specifically in page 37 and 41 of Bundle C (P7). The Issue of Sudden Drop, Back-Billing Calculation Formula and the Method Used to Calculate the Total Loss of Revenue and Expenses [56] Throughout the trial and in their submission, the Defendant suggested that the Plaintiff should have shown that there was a sudden drop in the trend of electricity consumption at the Defendant’s premise to prove the tampering and subsequent loss of revenue as a result of the tampering found. [57] Additionally, the Defendant have disputed the method of calculation used by the Plaintiff given the reason that there was no sudden drop in the meter reading or electricity consumption according to the bills produced to this Court. [58] The Defendant further argued that the Plaintiff's back-billing calculation was excessive and unreasonable, in a way suggesting other methods such as the average consumption method (Kaedah Purata) should have been used instead of Kaedah Ralat Kejanggalan. The Defendant contended that because its electricity bills remained consistent before and after rectification, this proved that no significant revenue loss had occurred. [59] However, PW4 has a convincing answer in rebuttal to these. Examination of PW4, page 228-230 of NOP PP: Okay seterusnya En. Rasul dicadangkan TNB sebenarnya tak ada pun kerugian hasil sebab kWh sama, RM pun sama, tak ada yang lebih dan tak ada kenaikan secara mendadak. So, boleh tak En. Rasul jelaskan kenapa En. Rasul tak setuju dengan cadangan tersebut? SP4: Saya tak setuju kerana Suruhanjaya Tenaga telah mengeluarkan garis panduan bagi tuntutan kerugian hasil yang mana dalam garis panduan itu telah dinyatakan jika tiada penurunan mendadak terhadap bil pengguna sebelum ini, TNB boleh menuntut dengan kaedah ralat kejanggalan meter yang mana ralat kejanggalan meter ini telah pun pihak teknikal dapat semasa pemeriksaan dilakukan di tapak dan garis panduan juga menyatakan TNB jika tiada penurunan mendadak, TNB boleh menuntut kerugian hasil sehingga maksimum 5 tahun. PP: So, maksudnya dalam kes ini tak perlu TNB observe ada kenaikan ataupun penurunan mendadak sebab kita ada ralat. Betul? SP4: Berdasarkan graf, analisis graf. Kalau tiada, saya merujuk kepada A3, muka surat keempat, graf tersebut. Kalau dilihat – H: Muka surat berapa tadi? SP4: Muka surat 4, graf. H: 43? 44? PP: Kalau graf, page yang terakhir. Betul En. Rasul? SP4: Kedua terakhir. Okay, dekat graf ini kalau dilihat untuk tempoh 5 tahun, penggunaan elektrik di premis pengguna konsisten. Merujuk kepada garis biru. Yang menunjukkan tiada penurunan mendadak. Oleh yang demikian, TNB menerusi garis panduan Suruhanjaya Tenaga terus boleh menggunakan ralat tersebut. PP: Berkenaan dengan garis panduan, tadi peguam ada cadangkan, penggunaan garis panduan Suruhanjaya Tenaga ini hanya boleh dipakai sekiranya perbezaan dizahirkan. So, boleh tak En. Rasul jelaskan macam mana pengguna dalam kes ini akan tahu ada perbezaan sebelum dan selepas? H: Penggunaan garis panduan hanya terpakai kalau apa? PP: Kalau terdapat perbezaan. Sekiranya perbezaan dizahirkan. Boleh tak jelaskan macam mana pengguna dalam kes ini boleh tahu perbezaan sebelum dan selepas? SP4: Jika pihak pengguna menggunakan elektrik seperti biasa selepas pembetulan dibuat, sepatutnya pihak penggunaan akan nampak perbezaan tersebut. Tapi untuk kes ini selepas pembetulan dibuat berdasarkan kepada bil-bil yang telah ditunjukkan tadi, terdapat juga bil-bil yang mana premis ini kosong. Maknanya pengguna tiada pun di premis yang mana menunjukkan penggunaan elektrik ini tidak sama dengan sebelum sebelum ini. Jadi untuk kes ini, pihak pengguna tak akan dapat tahu penggunaan sebenar dia jika dia mengosongkan premis atau mengawal penggunaan di premis. [60] PW4’s explanation was in fact justified. This Court finds reference in para 5.2.2 of EC’s Guidelines:

5.2.2 Kaedah Ralat Kejanggalan I. Sekiranya tiada sudden drop, pengiraan berdasarkan ralat meter boleh dibuat sekiranya ralat meter diperolehi semasa pengujian meter dijalankan. Peratusan ralat menunjukkan meter tidak merekodkan bacaan penggunaan elektrik sebenar. II. Bagi memastikan tuntutan kerugian hasil bagi kaedah ralat kejanggalan boleh digunakan, pemegang lesen hendaklah memastikan alat pengujian yang digunakan telah ditentukur dan memiliki sijil ujian terkini yang sah tempoh. III. Walau bagaimanapun, ralat meter yang diperolehi semasa pengujian meter perlu ditolak dengan ralat maksimum yang dibenarkan, iaitu sebanyak 3.00%. (Sebagai contoh, jika ralat meter didapati -66.00%, tuntutan kerugian hasil hanya boleh dibuat sebanyak -63.00% sahaja) IV. Bacaan hendaklah diambil bagi semua fasa sebanyak tiga kali. Ralat meter ditentukan berdasarkan kepada purata ketiga-tiga bacaan tersebut. Sekiranya ralat kejanggalan tidak dapat diperolehi menggunakan set pengujian meter, pengiraan secara manual hendaklah dilakukan berdasarkan kaedah pengiraan seperti di Lampiran 15. Kaedah pengiraan secara manual hendaklah disahkan oleh Jurutera/Eksekutif Teknikal yang bertanggungjawab. [61] On the whole of that argument by the Defendant, indeed, there was no sudden drop in the trend of electricity consumption by the Defendant. [62] Nevertheless, to suggest that the Plaintiff has erred in presuming that tampering was found at the meter/meter installation and to have subsequently calculated the irregularities without any sudden drops noticed therein is a misconception on the part of the Defendant. [63] It is imperative to note that generally, a sudden drop is used to determine the starting date for calculating the amount of loss of revenue which is also presumed as the date on which the tampering allegedly began. However, in the present case, since there was no sudden drop in electricity consumption at the Defendant’s premise, tampering was estimated to begin as early as the meter was installed at the said premise and as EC’s Guidelines suggests, the back-billing period will be of 5 years. [64] This was appropriately done in the present case by the Plaintiff, where the error method (Kaedah Ralat Kejanggalan) was applied. In that pretext, this Court finds that explanation by PW4 to be both reasonable and justified in light of the circumstances. [65] This point can be related to the case of Siah Fishery Seafood Sdn Bhd V. Tenaga Nasional Berhad [2025] CLJU 700 wherein YA Jamhirah Ali J distinguished the usage of the error method (Kaedah Ralat Kejanggalan) as compared to average consumption method (Kaedah Purata); and the decision thereby is taken into guidance by this Court.

The Plaintiff further argued that TNB's back-billing calculation was excessive and unfair, claiming that TNB should have used Kaedah Purata (the average consumption method) instead of Kaedah Ralat Kejanggalan. The Plaintiff contended that because its electricity bills remained stable before and after rectification, this proved that no significant revenue loss occurred.

However, this Court finds that this argument is flawed. TNB's use of Kaedah Ralat Kejanggalan was justified because it is based on an actual accuracy test rather than assumptions about past electricity usage. This method directly measures the error rate (-92.84%) and applies it to the back-billing period, ensuring that TNB only claims for electricity that was used but not recorded. By contrast, Kaedah Purata relies on estimates of past usage and requires three months of post-rectification data, which was not available when the back-billing calculation was made. The Garis Panduan ST (ST Guidelines) confirmed that Kaedah Ralat Kejanggalan is the appropriate method in such cases.

The Plaintiff's reliance on post-rectification electricity bills was also misplaced. The Federal Court in Tenaga Nasional Bhd (TNB) v. Evergrowth Aquaculture Sdn Bhd and other appeals [2021] 9 CLJ 179; [2021] 5 MLJ 937 ruled that "since the ESA 1990 is silent on the methodology to be used by TNB to calculate the loss of revenue it suffered due to meter tampering, Parliament has left the process of ascertainment to TNB because of the difficulties inherent in this type of claim'.

In this case, TNB explained why it chose to apply Kaedah Ralat Kejanggalan instead of Kaedah Purata, and I find that explanation to be both reasonable and justified in light of the circumstances.

To begin with, Kaedah Ralat Kejanggalan is a method that relies on actual data specifically, the results of an accuracy test carried out during the inspection. That test revealed a significant under-recording; the meter only registered 7.16% of the actual electricity consumed, with a negative error margin of 92.84%. Rather than estimating usage, TNB applied this measured error rate to the billing period in question. This method is recognised in the Garis Panduan ST, and this Court accepts that relying on a methodology grounded in real technical findings was appropriate.

TNB also explained that Kaedah Purata the average consumption method preferred by the Plaintiff simply wasn't suitable here. That method requires at least three (3) months of post-rectification data to work properly. But in this case, the meter was removed, and the power supply was disconnected within about a month of the inspection. There was no opportunity to collect the kind of post-rectification data needed to apply Kaedah Purata in a meaningful way.

More importantly, TNB argued that relying on post-rectification consumption can be misleading. Once consumer become aware that they have been inspected or that enforcement action is underway, their usage behaviour may change-whether intentionally or not. Therefore, post-tampering usage patterns may not reflect past consumption accurately.

In the present case, TNB provided a clear and reasoned explanation for its use of Kaedah Ralat Kejanggalan over Kaedah Purata, which the learned SCJ accepted after considering the factual matrix. As the utility provider, TNB is best placed to determine the most appropriate and accurate method to calculate a fair and reasonable back-billing amount. The learned SCJ was correct to accept TNB's reasoning, and I see no reason to interfere with that finding. On the contrary, I agree that the use of Kaedah Ralat Kejanggalan was fair and appropriate in this case. [66] The application and approval of this error method (Kaedah Ralat Kejanggalan) and the calculation by way of back-billing can be observed in a plethora of cases. To name a few, the above-quoted Siah Fishery Seafood Sdn Bhd V. TNB [supra], TNB v. Syarikat Sim Quarry Sdn Bhd [2018] 1 LNS 294, TNB v. Lension (M) Sdn Bhd [2018] 1 LNS 42, TNB v. Yu Woon Gin & Anor [2016] 1 LNS 1292 and Tenaga Nasional Bhd v Arkitek Urbanisma Sdn Bhd [2011] 10 CLJ 79. Calculation Based on Estimation [67] Apart from that, the Defendant too argued that the amount claimed by the Plaintiff in this action is based on a mere estimation and therefore should not be accepted by this Court. [68] To that argument, this Court dissents. As explained by the Court of Appeal in the case of Tenaga Nasional Berhad v AWP Enterprise (M) Sdn Bhd [2015] 1 CLJ 400; [2015] 3 MLJ 268, the determination of loss of revenue should be based on the presumption or estimation that it is impossible for the Plaintiff to turn back time to record actual consumption in cases involving tampering with the meter/meter installation. [17] For the electricity supplier, it is impossible to turn back the clock and re-meter the consumption. The determination is necessarily by an estimate. ........... [24] The germane consideration, in our view, is that the document demonstrates how an estimate is arrived at in calculating back charges to be imposed. An estimate, compared to actual evidence will appear as sketchy, hazy and confusing. Statistical mathematics and analysis is not a subject within the expertise of lawyers and judges. If the estimate results in imposing an additional charge of 27% to what had been billed and paid, it is not so necessarily beyond the bounds of reasonability that it must be rejected. In our view, if it is established that a meter had been tampered with and its readings does not reflect the actual consumption of electricity, and the additional charge or back charge imposed upon the consumer is not demonstrated to be manifestly unreasonable, excessive or wrong, the amount due is proved upon a balance of probabilities. [25] In the final analysis:

a consumer must pay for the electricity he consumes;

he should not be allowed to benefit from tampering of meters to pay less, as it results in the general public paying more for their electricity; and

since the clock cannot be turned back to re-measure the consumption, only estimates can be made, and if such estimate is not shown to be manifestly unreasonable, excessive or wrong, it may be accepted as proof upon a balance of probabilities of the amount estimated and claimed. [69] Despite the Defendant’s mere argument, the Defendant did not adduce any expert evidence or analysis to demonstrate that the Plaintiff’s back-billing calculation was excessive or inaccurate. The Defendant too, did not suggest any alternative method of calculation by calling any other expert to testify pertaining to this. [70] In that context, this Court finds guidance in Tenaga Nasional Bhd v. AWP Enterprise (M) Sdn Bhd [supra] wherein the Court of Appeal held: "[29] The appellant, upon whom the burden of proof lay to prove its case upon a balance of probabilities, having adduced evidence of the estimate and how it is arrived at, the burden shifts to the respondent to show that the estimate is in fact manifestly unreasonable, excessive or wrong." [71] Based on the above-quoted passage, it can be seen that the Court of Appeal affirmed that the initial burden lies with the Plaintiff in this case to establish its claim on a balance of probabilities, including evidence of how the estimate was derived. Once that burden is discharged, the evidential burden shifts to the Defendant to show that the estimate is manifestly unreasonable, excessive, or incorrect. In the present case, the Defendant failed to discharge that burden. [72] Therefore, there is no reason for this Court to reject the calculations made by PW3 which was subsequently approved by PW4. Unjust Enrichment [73] On the other hand, the Plaintiff in their submission asserted that the loss of revenue constituted unjust enrichment by the Defendant. Thus, having received the benefit of the electricity supply connected to the premise, the Defendant was liable to compensate the Plaintiff fairly and reasonably. [74] However so, the law on unjust enrichment is settled in Malaysia, especially on the cases involving claims by TNB in Ichi-Ban Plastic [supra]: [96] Coming back to the present appeals, as an alternative or in addition to the statutory cause of action under s.38(3) of the Act for recovery for loss of revenue, TNB is similarly entitled to legally pursue the claim based on a cause of action in unjust enrichment. If TNB elects to pursue relief for unjust enrichment then, as is a matter of settled law, there must be a proper and specific plea in the statement of claim that its cause of action is so founded. Further, material particulars that give rise to unjust enrichment must be provided in the pleadings. In this regard, it is a well-settled legal principle that the court should not decide on an issue that was not pleaded by the parties. Parties are required to set out the factual bases of their respective cases in the pleadings. The most important purpose of pleadings is to plead reasonable cause of action, define the issues of fact and questions of law to be determined by the court (see Saiman bin Umar v Lembaga Pertubuhan Peladang and another appeal [2015] 6 MLJ 492). Pleadings enable both parties to know in advance the averments being made against them so that they will not be taken by surprise during the trial. Tellingly, in the present appeals TNB did not plead that its cause of action was founded on the law of unjust enrichment. Unjust benefit was not a pleaded issue. With respect, the submission on the benefit/unjust enrichment question by learned counsel for TNB is, therefore, misconceived. [75] Bearing this in mind and also recognising that unjust enrichment is a form of restitution which shall be specifically pleaded by the Plaintiff as an alternative or in addition to the statutory cause of action under s.38(3) of the Act for recovery for loss of revenue, this Court wish not to decide on the issue which was found nowhere in the Plaintiff’s pleadings. Other Issues [76] To the Defendant’s defence in explaining the electricity consumption in his premise, he testified that the average electricity bill for the Defendant's premises was RM200 to RM500, be it before or after the inspection and rectification by the SEAL team, which was reasonable because in 2020 it was the implementation of the Movement Control Order (MCO) and that he spent his time at his medical shop from 07:30 am to 09:00 pm. [77] However, no documents were produced such as the shop's electricity bill to support his statement. As such, this Court hesitates in accepting that contention in whole. [78] Nonetheless, as explained earlier, the burden on the Plaintiff in this case is to prove that tampering was found on meter/meter installation at the Defendant’s premise regardless of whoever the perpetrator is. If this can be evinced (which this Court opines that the Plaintiff have), then it can be deduced that the Defendant, being the registered consumer have in fact benefitted from the electricity consumption at a lower price at the expense of the Plaintiff. [79] To put it simple, a consumer must pay for even the slightest of benefit he has received if the tampering is proven in his premise. This was encapsulated in Thomas Thomas V. Tenaga Nasional Bhd [supra] as such: [16] 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 consumer can walk away without paying anything to TNB on the ground that the meter had been damaged or tampered with without his knowledge. [17] In our view, in an action by TNB to recover loss of revenue resulting from meter tampering, a registered consumer cannot avail himself of such defence for the simple reason that it will result in unjust enrichment to the consumer. He can only be absolved of liability if he can show that no electricity was consumed at the premises during the period that the meter was tampered with. [18] It is not open to the appellant to say that he did not "benefit" from the consumption of the electricity on the ground that the premises had been "continuously occupied by an unbroken chain of tenants". The simple truth is, the premises belonged to him and he was the registered consumer under account No. 012364675401. Section 71 of the Contracts Act 1950 therefore comes into play. ……. [20] Therefore, as far as consumption of electricity in the premises is concerned, it was the appellant's sole responsibility, being the "consumer" under the agreement, to pay all outstanding charges due to TNB. On the evidence as found by the learned Sessions Court Judge and as affirmed by the learned High Court Judge on appeal, electricity had in fact been consumed during the period from 22 September 2004 to 21 December 2007. It is irrelevant who actually consumed the electricity. [21] As TNB's registered consumer, it was the appellant's responsibility to ensure that the meter at the premises was not damaged or tampered with. This responsibility remains with the appellant throughout the duration of the agreement unless by his tenancy agreement with the tenant, he had assigned such responsibility to the tenant. Even then such agreement would not bind TNB, not being a party to the tenancy agreement. [22] Thus, where the meter was damaged or tampered with by the tenant or 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 damage 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. [80] Other than that, the Defendant’s rebuttal to the Plaintiff’s claim was nothing more than bare denial. The Defendant’s defence, be it in his pleadings or in his testimony, was a bare denial where he denied any knowledge on the Plaintiffs’ assertions, including the outcome of the inspection and the existence of the tampering of the meter/meter installation. [81] Without any convincing or corroborative evidences produced, this Court believes that the object of the defence cannot be achieved by a mere general denial which do not constitute a defence to the claim, more so when the burden shifted to the Defendant to rebut [the Plaintiff’s claim] that the meter was not at all tampered. [82] Overall, this Court believes that the Defendant have indeed benefitted from the tampering found at the meter/meter installation at his premise. Thus, denying the Plaintiff’s right (or in specific, statutory right) under the ESA 1990 would mean that the Defendant will not be required to pay for the energy consumed by him and that could not be tolerated by this Court. [83] Furthermore, this Court reckon that the Plaintiff’s total loss of revenue was properly quantified. [84] Therefore, given that the Plaintiff’s calculation followed a legally accepted method, and the Defendant failed to provide any alternative calculation, this Court finds no reason not to accept the amount arrived at by the Plaintiff in full. Whether the Plaintiff's Claim or a Substantial Part of the Plaintiff's Claim is Time-barred Under the Limitation Act 1953 [85] The Court now deals with the Defendant’s contention in their pleading that the Plaintiff's claim is time-barred under the Limitation Act 1953 (LA 1953). Although it can be observed that this issue was dealt with in their submission, this Court steps in to clarify this issue nonetheless for the sake of completeness and as the matter is included in the Parties’ issues to be tried. [86] The answer to this can be distinctly found under S.6(1) of the LA 1953 and in the case of Evergrowth Aquaculture Sdn Bhd [supra] as such: [78] Learned counsel for the respondents submitted that TNB’s cause of action starts to run from the date the meter was alleged to have been first tampered with and not from the meter tampering was alleged to have been discovered. According to learned counsel, subsection 38(3) of the ESA 1990 provides that TNB is entitled to claim for loss of revenue due to the “offence committed” under subsection 37(1), (3) or

of the ESA 1990 and not due to the offence discovered. [79] In our view, the issue is not an open question in the sense that the issue has been settled by the pronouncements of our Courts in a series of cases. Our Courts have consistently found that civil cause of action under subsections 38(3) to (5) of the ESA 1990 only occurs upon TNB’s discovery of the meter tampering during the inspection under subsection 38(1) of the ESA 1990. [80] We think, it is sufficient in this judgment, for us to refer to the case of Pahlawan Sdn Bhd v Tenaga Nasional Berhad, Civil Appeal No. J 01(IM)-455-2100 where the Court of Appeal in its “Broad Ground” dated 6.7.2011 said– “On 14.10.2003, the plaintiff conducted an inspection on the electricity meter at the defendant’s premise. The inspection revealed that the meter was tampered with, thus causing it to fail to record the correct usage of electricity….. We held that the cause of action accrued on 14.10.2003 i.e. when the plaintiff found the meter was tampered with, and not on 20.1.2010 when the defendant denied liability. In the circumstances of the case, and since the plaintiff commenced the action on 2.3.2010 that is after the 6 years period, the plaintiff’s action therefore was barred by limitation. Hence we allowed the appeal”. [81] In this regard, it is pertinent to note that the cause of action envisaged under subsections 38(3) and (5) of the ESA 1990 is a statutory claim, where the right to recover or the relief is specifically stipulated therein. The cause of action is independent of any common law claim for tort or breach of contract. There is no rhyme or reason for us to depart from the earlier court decisions on this issue. [82] As a result of these considerations, we answer the said Question 3 in Civil Appeal No. 02(f)-23-03/2020(B) as follows: That the cause of action starts from the discovery of meter tampering. Limitation period starts therefrom onwards. [87] Suffice for this Court to quote the case above despite a number of cases decided on this issue. [88] In the present case, the inspection was carried out on 3rd February

In this regard, the cause of action accrued on the date when the Plaintiff discovered the tampering of the electricity meter. As such, the limitation period of 6 years would have set in on 3rd February 2027. Since this suit was filed on 12th April 2022, the action is not time barred. Even if the loss of revenue relates back to a period after 6 years (28th February 2016), it negates the contention that time had set in on the Plaintiff’s claim. CONCLUSION [89] To conclude, it is worthy to reproduce the wise words of the panel of honorable judges in Federal Court case of Tenaga Nasional Bhd (TNB) v. Evergrowth Aquaculture Sdn Bhd and other appeals [supra] as such: [110] It is axiomatic that a consumer must pay for the electricity it consumes (see: Tenaga Nasional Bhd v. AWP Enterprise (M) Sdn Bhd [2015] 1 CLJ 400; CA and Rehanah Mahmood v. TNB [2016] CLJU 580; [2016] 1 LNS 580; HC). Once meter tampering is proved, the court must determine the loss of revenue suffered by TNB and recoverable against the consumer. This has to be so as the principle is that TNB's consumer must pay for the electricity consumed and not be allowed to benefit from the tampering of meters to pay less (see: Tenaga Nasional Bhd v. Ternakan Air Wui Kyee Sdn Bhd & Another Appeal [2015] 5 CLJ 955; CA). [111] If, despite proof of meter tampering, TNB's claim is to be completely dismissed, it would result in TNB having to unnecessarily and unfairly suffer from the mischief that Parliament had intended to protect it from. The remedy expressly provided by s. 38 of the ESA 1990 to protect TNB's interests against meter tampering would thus be rendered nugatory. [90] Ultimately, despite the absence of a clear guideline provided in ESA 1990 pertaining to inspection and calculation of total loss of revenue, weighing up the facts and evidences adduced before this Court, it can be observed that the Plaintiff have given a valiant effort in acting according to the guidelines provided by the Energy Commission by way of the EC’s Guidelines, be it during the inspection, or the calculation methods applied in the present case. [91] Thus, after having evaluated the totality of the evidence, this Court finds that the Plaintiff has successfully proven their case on the balance of probabilities. Accordingly, the Court allows the Plaintiff's claims against the Defendant amounting to RM 52,441-10 with costs as per scale and interest as pleaded. Dated 6th August 2025 (DHILIP NAIR A/L R.N. ATCHUTHAN) MAJISTRET MAHKAMAH MAJISTRET SEGAMAT, JOHOR Counsel/Solicitor: For the Plaintiff: Ms. Izatunlina Jamaluddin & Ms. Anis Natasha Ahmad Ridwan Messrs Othman Hashim & Co. Unit No. LP 08-09, LP Floor, Menara TJB No. 9, Jalan Syed Mohd Mufti Johor Bahru, 80000, Johor For the Defendant: Mr. Lawrnee Gnanapragasam, Mr. Mohd Radzi Bin Yatiman & Ms. Zueidriena Hasanein binti Hazni Messrs Rahim & Lawrnee No. 124 & 125, Tingkat 1, Jalan Sia Her Yam, 85000 Segamat, Johor Cases referred to:

Tenaga Nasional Berhad v Ichi-Ban Plastic (M) Sdn Bhd & Other

Tenaga Nasional Berhad v. Asia Knight Bhd (previously known as

Thomas Thomas V. Tenaga Nasional Bhd [2017] 4 CLJ 340; [2018]

Marwin Industries Sdn Bhd v. Tenaga Nasional Berhad [Civil Appeal

Oscar Canary Sdn Bhd v. Tenaga Nasional Berhad [2019] CLJU 811; [2019] 1 LNS 811; [2019] 5 MLJ 502

Tenaga Nasional Berhad V. Api-Api Aquaculture Sdn Bhd [2015] CLJU 65; [2015] 1 LNS 65

Tenaga Nasional Bhd (TNB) v. Evergrowth Aquaculture Sdn Bhd and other appeals [2021] 9 CLJ 179; [2021] 5 MLJ 937

Siah Fishery Seafood Sdn Bhd V. Tenaga Nasional Berhad [2025]

TNB v. Syarikat Sim Quarry Sdn Bhd [2018] 1 LNS 294

TNB v. Lension (M) Sdn Bhd [2018] 1 LNS 42

TNB v. Yu Woon Gin & Anor [2016] 1 LNS 1292

Tenaga Nasional Bhd v Arkitek Urbanisma Sdn Bhd [2011] 10 CLJ

79.

Tenaga Nasional Berhad v AWP Enterprise (M) Sdn Bhd [2015] 1 CLJ 400; [2015] 3 MLJ 268 Legislation referred to:

Electricity Supply Act 1990 [Act 447]

Companies Act 2016 [Act 777]

Limitation Act 1953 [Act 254] Date of Decision: 28th May 2025