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2014 MarsdenLR 2672
HIGH COURT MALAYA KUALA LUMPUR
TENAGA NASIONAL BERHAD – Appellant
Versus
CHEW SOY – Respondent
[Civil Appeal No: 12BNCVC-53-01/2014]
A consumer may claim for loss of revenue due to tampering of an electricity meter without requiring prior criminal charges against them, and limitation periods commence upon discovering the tampering.
Headnote:(A) Electricity Supply Act 1990 - Sections 2, 38(3), 38(4), and 40 - Appeal against dismissal of claim for loss of revenue due to meter tampering - Court found learned Judge erred by requiring criminal charges against Respondent for civil claim - Claim for RM36,913.11 allowed, with interest at 5% per annum from judgment date. (Paras 1, 2, 5, 12, 24, 28)
(B) Limitation Act 1953 - Section 6(1) - Claim not time-barred; cause of action accrued upon discovery of tampering. (Paras 17, 20)
(C) Licensee Supply Regulations 1990 - Regulation 11(2) does not apply to tampering cases, allowing for retrospective claims beyond three months. (Paras 22, 24)
| Table of Content |
|---|
| 1. appeal against dismissal of revenue loss claim. (Para 1 , 1) |
| 2. appellant's claim allowed with damages. (Para 2) |
| 3. clarifications on sections of the electricity supply act. (Para 3 , 4) |
| 4. court's error in requiring criminal conviction for civil claims. (Para 5 , 9 , 14) |
| 5. burden of proof shifts after prima facie evidence. (Para 6 , 12 , 13) |
| 6. appellant's claim based on tampering evidence. (Para 10 , 11) |
| 7. respondent's failure to present rebuttal evidence. (Para 15) |
| 8. final judgment and award of the appeal. (Para 16) |
| 9. timeliness of actions under limitation act. (Para 17 , 18 , 19) |
| 10. cause of action under limitation act clarified. (Para 20) |
| 11. regulations on meter readings and adjustments. (Para 21 , 22 , 23) |
| 12. tampering not limited by retrospective adjustment regulations. (Para 24 , 26) |
[1] This an appeal by the Appellant / Plaintiff ("the Appellant") against the Decision of the learned Sessions Court Judge ("the learned Judge") given on 29 November 2013 which dismissed the Appellant's claim, with costs according to scale, for loss of revenue for use of electricity for RM36,913.11 which was not recorded from 22 January 2000 to 24 July 2005, including operating costs, due to tampering of the meter in the premises of the Respondent/Defendant ("the Respondent").
Decision Of The High Court Given On 8 April 2014 Regarding The Appellant's Appeal
[2] The Appellant's appeal is allowed for the sum claimed by the Appellant in the Summons and Statement of Claim. Interest at 5% per annum on the Judgment sum from the date of Judgment until the date of full realization. Costs of RM4,000.00 are to be paid by the Respondent to the Appellant.
Grounds For Decision
[3] The Appellant's claim for loss of revenue is made under s 38(3) of the Electricity Supply Act 1990 ("the Act") which provides as follows:
"(3) 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 expenses incurred by the licensee under this section including expenses incurred in respect of the reconnection of electricity supply.".
[4] Section 38 (1) of the Act states as follows:
"Disconnection of supply of electricity
38. (1) Where any person employed by a licensee finds upon any premises evidence which in his opinion proves that an offence has been committed under subsection 37(1), (3) or (14), the licensee or any person duly authorized by the licensee may, upon giving not less than twenty-four hours' notice, in such form as may be prescribed cause the supply of electricity to be disconnected from the said premises.".
[5] The learned Judge erred in holding that the Respondent must first be charged, found guilty and convicted of the offence under s 37(1), (3) and (14) of the Act before the Appellant can commence civil proceedings against the Respondent to claim for loss of revenue due to the offence committed.
[6] In s 38(1) of the Act, so long as in the "opinion" of the employee of the licensee an offence has been committed under s 37(1), (3) or (14) of the Act, the licensee or his authorized officer or employee can disconnect the supply of electricity to the premises.
[7] However, this action is not regarding the disconnection of electricity supply to the Respondent's premises. Rather, the issue is whether the Appellant is entitled to claim for loss of revenue due to tampering of the meter in the Respondent's premises ('the premises").
[8] Even though the Respondent had not been charged for the offence under s 37(1), (3) or (14) of the Act, the Respondent is allowed to file this action under s 38(5) of the same Act which provides as follows:
"(5) The amount stated in the written statement 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.".
[9] It is not disputed that the Respondent is the account-holder for the supply of electricity by the Appellant. Therefo
