The court established that a utility provider can recover lost revenue due to meter tampering based on reasonable estimations, emphasizing the importance of the average consumption method in such assessments.

(Assessment Of Damages Pursuant To Order Dated 22 December 2021)

Noor Ruwena Md Nurdin J:

Introduction

[1] This Grounds of Judgment has been prepared in respect of an appeal to the Court of Appeal by Everthrough Rubber Products Sdn Bhd (the Defendant) against the decision of this Court on 22 January 2025 whereby the Court allowed the Plaintiff, Tenaga Nasional Berhad's claim of RM3,017,316.49, (for loss of revenue from 29 April 27 to 22 December 2011) after a two-days' hearing was conducted on 22 March 2024 and 15 August 2024. The hearing was in regard to an assessment on the Plaintiff's revenue loss caused by the Defendant, pursuant to a Court of Appeal order dated 22 December 2021 as follows:

"Tindakan ini dikembalikan ke Mahkamah Tinggi untuk taksiran kerugian hasil yang ditanggungi oleh Responden."

Background

[2] The suit was brought by the Plaintiff which has a branch in Taiping against the Defendant, a private company which has its registered address in Ipoh. The business of the Defendant was manufacturing rubber tyres in Kawasan Perindustrian Kamunting, Taiping. It was an agreed fact that the Defendant had applied to and was approved electricity supply by the Plaintiff in accordance with the contract for electricity supply. An inspection conducted by the Plaintiff upon its meter installed in the Defendant's premises showed that the meter had been tampered with. A Notice of Demand was issued on 25 October 2012 and 18 February 2016 for an amount of RM7,056,830.61 for the period of 1 September 27 to 26 December 2011. Later, a Notice of Demand dated 22 February 2017 and 16 June 2017 were issued for an amount of RM3,430,666.98 for the period of 28 April 27 to 22 December 2011.

[3] These were the Agreed Facts in the earlier trial where the High Court found that the Defendant was liable for tampering the Plaintiff's meter and on 30 January 2019, the Plaintiff's claim for liability of tampering and quantum against the Defendant was allowed by the High Court. The Plaintiff was awarded RM3,430,666.98 (inclusive of costs of rectification of the meter) for the period between 28 April 27 to 22 December 2011. The Defendant filed an appeal to the Court of Appeal. However, on 22 December 2022, the Court of Appeal dismissed the appeal against liability but allowed the Defendant's appeal on quantum and ordered that an assessment be conducted to ascertain the Plaintiff's lost revenue. During the hearing on the assessment of damages before me, the Plaintiff called only 1 witness to prove its claim whereas the Defendant called 2 winesses on its behalf. The list of witnesses were as follows:

i. Syed Ahmad RIdzuan Bln Syed Isa (SP1);

ii. Poongavanam a/l Kutty (SD1); and

iii. Shunmugam a/l Krishnan (SD2).

[4] Bundle of Documents referred to by the Court were:

i. Plaintiff's Bundle of Documents — PBOD1

ii. Plaintiff's Bundle of Documents (2) — PBOD2

iii. Defendant's Bundle of Documents — DBOD

iv. Graph on the comparison of Defendant's consumption (KWH Peak) before and after rectification — PBOD1, p 13 (P1)

v. Graph on the comparison of Defendant's consumption (KWH Off Peak) before and after rectification — PBOD1, p 14 (P1)

vi. Graph on the comparison of Defendant's consumption (KWMD) before and after rectification — PBOD1, p 15 (P1).

[5] After the hearing was completed, the Court considered the submissions and evidence adduced by the parties in order to arrive at its decision. This Grounds of Judgment contains my reasons for allowing the Plaintiffs' claims including the costs of rectification of the tampered meter.

Evaluation And Findings Of The Court

[6] The assessment of damages hearing was ordered as there was a significant error in the computation of the Plaintiff's loss of revenue in the period between 28 April 27 to 22 December 2011. The amount of RM7,056,830.61 in fact was reduced to RM3,430,666.98 even before the first suit was commenced. The amount of RM3,017,316.49 awarded by this Court was based on the computation by the Plaintiff in their prepa