A licensee can recover loss of revenue from a consumer for tampered meters under statutory provisions without proving the identity of the perpetrator.

Introduction

[1] This is an action by the Plaintiff against the Defendant for loss of revenue due to meter tampering discovered at two (2) of the Defendant's factories on 19 November 2009 pursuant to s 38(3) to (5) of the Electricity Supply Act 1990 (" ESA ").

Background Facts

[2] TNB, the Plaintiff is a licensee under the ESA and supplies electricity to the Defendant's two factories at Plot 55(a), Mukim 13, Taman Perindustrian Bukit Minyak, 14100 Seberang Prai Tengah, Bukit Mertajam, Pulau Pinang ("the Defendant's First Premises") and at Plot 553, Lorong Perusahaan 4, 13600 Perai, Pulau Pinang ("the Defendant's Second Premises"). Both these factories will collectively be referred to as "both the Defendant's Premises".

[3] The Defendant was registered with the Plaintiff for the supply of electricity under account number 0231-003171656 for the Defendant's First Premises and for account number 0231-00317814-01 for the Defendant's Second Premises.

[4] On 19 November 2009, the Plaintiff had conducted an inspection on its meters at both the Defendant's Premises. Both of the Plaintiff's inspection teams were accompanied by a team of police officers from Bukit Aman.

[5] From its inspections, the Plaintiff discovered that its meters at both the Defendant's Premises had been tampered with. In this regard:-

a. The Plaintiff's meter at the Defendant's First Premises was tampered by way of "... litar arus S1 dan S2 telah diganggu menggunakan alat dawai pemintas tembaga dimana link Test Terminal Block ("TTB") meter telah dipintas pada bahagian S1 untuk setiap fasa merah, kuning dan biru ke bumi"; and

b. The Plaintff's meter at the Defendant's Second Premises was tampered by way of "... alat pemintas tembaga tersebut dengan memintaskan litar arus S1 dan S2 bagi ketiga-tiga fasa merah, biru dan kuning."

[6] The meter tampering discovered caused the Plaintiff's meters at both the Defendant's Premises to not be able to record the actual electricity consumed by the Defendant at these factories.

[7] The Plaintiff then carried out the necessary repair works which necessitated a shutdown of electricity supply to both the Defendant's Premises to allow the Plaintiff to replace the tampered meters with new ones.

[8] All evidence in respect of the meter tampering discovered by the Plaintiff during the inspections at both the Defendant's Premises were collected and surrendered to the accompanying police team.

[9] Thereafter, both the Plaintiff's inspection teams lodged a police report in respect of their respective findings of meter tampering.

[10] The tampering of the Plaintiff's meters caused it to suffer loss of revenue as it meant that the Defendant was not properly charged for the electricity consumed at both the Defendant's Premises. In this regard, the Plaintiff calculated its loss of revenue (and expenses incurred), as a result of the meter tampering discovered at both the Defendant's Premises as follows:-

c. RM7,088,706.08 in respect of the meter tampering discovered at the Defendant's First Premises; and

d. RM1,274,315.36 in respect of the meter tampering discovered at the Defendant's Second Premises.

[11] The Plaintiff issued the Defendant its letters of demand dated 14 December 2009 to recover the above loss of revenue (and expenses).

[12] The Defendant thereafter engaged the Plaintiff in a discussion in respect of the loss of revenue amount claimed by the Plaintiff. In this regard, the Defendant, inter alia:-

e. met with the Plaintiff's officers to discuss the Plaintiff's claim on 31 December 2009;

f. proposed to settle the Plaintiff's claim with an amount of RM1,906,129.00 to be paid in 24 monthly instalments vide its