Claims for electricity back-charges are subject to Regulation 11(2), limiting recovery to three months from notice of meter inaccuracies.

[1] This action had been set down for trial. On the first day of the trial, Counsel for the Defendant informed that he had just filed an application (Enclosure 9) for a determination of two issues pursuant to O 33 r 2 and 5 of the Rules of the High , 1980 (RHC), which determination, it was submitted, would assist in the disposal of the issues in controversy between the parties, without the necessity of a full trial.Counsel for the Plaintiff was not averse to an adjournment of the trial and for Enclosure 9 to be dealt with first.

Background

[2] In the Statement of Claim filed in this action, the Plaintiff claimed that:-

(a) They had supplied electricity to two premises of the Defendant, namely:-

(i) under Account No. 231-0317656-10 for the premises at Plot 55 (A) Mukim 13, Taman Perindustrian Bukit Minyak, Bukit Mertajam; and

(ii) under Account No. 0231-00316814-01 for the premises at Plot 553, Lorong Perusahaan 4, Perai.

(b) On 19 November 2009 an inspection was conducted on the meters which recorded the consumption of electricity at both the premises and it had been discovered - ".... terdapat pengusikkan pada pepasangan meter/ meter" ("tampering interference with the meter installation or the meter itself).

(c) A Police Report was lodged by the Plaintiff on 20 November 2009 in respect of that inspection and discovery.

(d) The Plaintiff had subsequently on 14 Disember 2009 made a demand on the Defendant to settle back-charges for the unrecorded usage of electricity for the period September 2007 to November 2009:-

(i) for Plot 55 (A), a sum amounting to RM7,088,706.08; and

(ii) for Plot 553 - RM1,210,902.86

The amounts claimed were based on calculations which relied on "... load profile penggunaan elektrik" (profile of past electricity usage) of the Defendant.

(e) The Defendant had appealed against the aforesaid assessment of back-charges and the Plaintiff had agreed to revise it downwards:-

(i) for Plot 55 (A) to RM6,803,477.44; and

(ii) for Plot 553 to RM1,210,902.86.

(f) Despite demands, the Defendant had failed to settle the back-charges claimed.

[3] The Defendant in their Statement of Defence and Counter claim:-

(a) denied all the allegations of the Plaintiff, save that there was an inspection at the premises on 19 November 2009 by the Plaintiff;

(b) placed on record that the Defendant had not been granted an opportunity to independently test, the alleged "faulty" meters;

(c) stated that following upon negotiations between the parties, the Defendant had made a without prejudice offer to compromise and settle the Plaintiff's claim by payment of RM 3 million but the Plaintiff was not receptive of that overture by the Defendant.

(d) stated further that no Police action had been taken against the Defendant, its officers or agents in respect of the alleged 'tampering'/interference with the meters or for 'defrauding' the Plaintiff.

[4] By way of counterclaim, the Defendant sought for a declaration that the Plaintiff's claim for back-charges for prior 27 months was unfair, arbitrary and unconscionable. The Plaintiff response to that was that the 27 months back-charges equated to the loss of revenue suffered by the Plaintiff during that period and that the Defendant was liable to meet that loss.

Enclosure 9

[5] The two question posed in Enclosure 9 for determination by the Court were:-

(a) Sama ada Regulation 11(2) Licensee Supply Regulations 1990 terpakai di dalam situasi di mana Defendan telah terkurang caj (undercharged) akibat meter elektrik yang tidak tepat atau tidak menunjukkan bacaan meter yang betul untuk membenarkan Plaintif membuat pelarasan ke belakang (retrospective adjustments) kepada akaun Defendant; dan

(b) Sama ada proviso kepada Regulation 11(2) Licensee Supply Regulations 1990 terpakai