Court determined that meter tampering accusations supported the recovery of loss under Section 38 without needing a conviction, while the defamation counterclaim was dismissed due to justification arising from actual tampering evidence.

Headnote:(A) Electricity Supply Act 1990 - Section 38 - Claim for loss of revenue due to meter tampering amounting to RM290,489.29 - Plaintiff presented inspection evidence of tampering but Defendant disputed evidence and claimed lack of conviction under the Act as a defense - Analysis affirmed the need for established unauthorized alterations to meter for revenue recovery claim; no need for offender conviction required - Plaintiff's claim dismissed. (Paras 6.1, 7.1, 9.1)

(B) Defamation - Defendant's counterclaim against Plaintiff for defamatory notices of demand relating to meter tampering allegations - The first notice simply claimed meter tampering; however, the second notice included an accusation of theft, which warranted examination for potential defamation - Defendant’s counterclaim dismissed based on justification of plaintiff’s claims. (Paras 10.1, 10.2)

Facts of the case:
The Plaintiff, a public listed electricity supplier, claimed for loss due to tampered electricity meter at Defendant's premises, determined to have resulted in shortfall not recorded, leading to claim amount. Defendant disputed tampering findings and counterclaimed defamation based on demand letters sent by Plaintiff.

Findings of Court:
The evidence presented by the Plaintiff of tampering was established through testimony, although the calculation claims faced scrutiny and doubts on accuracy. Additionally, the first demand letter was not defamatory, while the second letter's claim of theft was seen as potentially damaging but justified due to actual tampering.

Issues: The key issues included whether the meter had been tampered with, whether the Plaintiff provided prima facie evidence of loss, and whether the Defendant's counterclaim for defamation was valid.

Ratio Decidendi: The court concluded that evidence from inspections supported finding of tampering irrespective of the need for a criminal conviction, allowing Plaintiff substantial evidence for their claim yet failing to link precise financial loss due to counter-arguments raised regarding calculation. The court upheld justification defense for statements made in demand letters due to proven tampering.

Result: Plaintiff's claim and Defendant's counterclaim dismissed.

Teo Say Eng JC:

[1] Plaintiff's Case

1.1 The Plaintiff, the supplier of electricity is a public listed company incorporated under the Companies Act 1965.

1.2 The Defendant a private limited company is a registered consumer of the Plaintiff having a consumer account No. 0345-00697335-00 at premises No. 4, Jalan Bukit 3, Kawasan Perindustrian Miel, Seri Alam, 81750 Masai Johor.

1.3 The Plaintiff's claim is premised on Section 38 of the Electricity Supply Act 1990 (hereinafter to be referred to as E.S. Act) for loss of revenue amounting to RM290,489.29 arising from the tampering of the electricity meter on the Defendant's factory premises.

[2] Facts of the Case

On 14 June 2011, the Plaintiff through its staff had carried out an inspection at the Defendant's factory and found that the electric meter and the electrical installation had been tampered with. The Plaintiff carried out repairs and corrections on the said installations.

From the tests carried out, the Plaintiff discovered that the electricity meter failed to record the actual usage of electricity at the premises of the Defendant's factory as a result of the tampering.

The result of the tests carried out shows a short fall in the meter recordings of -4.07% as a result of the tampering.

Based on the results of the said inspection, the Plaintiff did the calculation and found that the amount of usage of electricity not recorded for the period between 7 January 2008 and 1 June 2011 was RM290,489.29.

The Plaintiff then sent a notice of demand dated 31 December 2012 through its solicitors Abdul Aziz Rahim & Co. claiming for loss of revenue amounting to RM290,489.29 arising from the tampering of the electric meter on the Defendant's factory premises.

[3] The Defence

The main contentions of the Defendant are:

1. There was no tampering of the Plaintiff's meter on the electrical installation.

2. There is no proof that the meter did not correctly capture the electricity consumed:

2.1 The Plaintiff used the wrong instrument to carry out the tests.

2.2 The clamp meter has a margin of error of 1.5% to 5% which has not been noted in the Borang Pemeriksaan P6.

2.3 The method used by PW1 and his colleagues was crude and inaccurate by counting and expecting two persons to take the reading and to take the photographs using 2 cameras at exactly the same moment.

3. Even if on the assumption that there was tampering of the meter, the Plaintiff had failed to prove the quantum of the loss claimed that is, RM290,489.29.

4. Since there was no conviction the Plaintiff cannot succeed on any claim under Section 38 of the E.S. Act.

5. The failure of the Defendant to amend the Statement of Claim in relation to the period of "7 Julai 2008 hingga 11 August 2008" to "7 Januari 2008 hingga 1 June 2011" meant that the Plaintiff is bound by the original pleadings.

6. The pleaded case of the Plaintiff is not based on history of the usage but based on the results of inspection carried out by TNB. Therefore any evidence on computations based on history of usage should be rejected.

[4] Defendant's Counterclaim

The Defendant claims that there was no proof of tampering or theft of any electricity by the Defendant.

The Defendant submits that the letters dated 5 December 2011 and 31 January 2012 are clearly defamatory of the Defendant as what was stated in the two letters meant:

(a) The Defendant is dishonest;

(b) The Defendant had done something dishonest and/or cheating;

(d) The Defendant had committed an offence against the law; and/or

(e) The Defendant is a person who does not pay his debts.

The Defendant is claiming general and exemplary damages for the sum of RM200,000.00 and costs and interest.

[5] Plaintiff's Reply to the Statement of Defence and Counterclaim

Basically, the Plaintiff denies the Statement of Defence and Counterclaim. The Plaintiff pleads that it has evidence to prove that the electric meter and the electrical installation at the Defendant's factory premises had been tampered with

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2013 MarsdenLR 2309

HIGH COURT MALAYA JOHOR BAHRUTENAGA NASIONAL BERHAD – AppellantVersusLTO INJECTION SDN BHD – Respondent[Civil No: 22NCVC-180-05/2012]

Court determined that meter tampering accusations supported the recovery of loss under Section 38 without needing a conviction, while the defamation counterclaim was dismissed due to justification arising from actual tampering evidence.

Cases Referred (2)

HIGH COURT MALAYA JOHOR BAHRU
TENAGA NASIONAL BERHAD – Appellant
Versus
LTO INJECTION SDN BHD – Respondent
[Civil No: 22NCVC-180-05/2012]