Estimates for electricity consumption due to tampering must be reasonable; the burden of proof lies with the licensee to establish such estimates, not the consumer.

[1] On 21 February 2011, the High Court dismissed the claim by the plaintiff Tenaga Nasional Berhad ("the appellant") against the defendant AWP Enterprise (M) Sdn Bhd ("the respondent").

[2] The respondent is the registered user of the account 0-12100512670 for the supply of electricity to its premises at Lot 9672, Jalan Desa Aman 13, Batu 11, Jalan Kuala Selangor, 47000 Desa Aman Sungai Buloh, Selangor Darul Ehsan.

[3] Having heard the parties, this Court allowed the appeal, entered judgment for the appellant in terms of the prayers (a) and (b) at para 16 of its statement of claim with costs fixed at RM30,000.00 here and below.

Brief Facts

[4] The appellant's claim arose out of the discovery upon an inspection conducted at 11.10pm on 15 May 2008 that the meter had been tampered with. The inspection was conducted in the presence of the respondent. It was found that as a result of the tampering, the meter failed to record the correct usage of electricity. The meter was repaired by the appellant, who lodged a police report DESA JAYA/00317 8/08 on 16 May 2008. It was calculated that for the period from 1 September 2006 to 15 May 2008, usage amounting to RM443,598.77 was not recorded. The respondent failed to settle this amount and litigation was commenced to recover:

(a) the sum of RM443,598.77;

(b) interest thereon at 8% per annum from the date of judgement to date of full settlement; and

(c) costs.

The Defence

[5] The defence in the statement of defence was:

(a) the respondent was not given notice of the intended inspection;

(b) on the night of 15 May 2008, some TNB officers, claiming to have a police warrant, forced their way into the factory, cut the padlock to the room in which the TNB metering installation is located;

(c) the respondent was not given notice of their findings;

(d) the respondent was told that the TNB metering installation was tampered, by a letter dated 21 October 2008;

(e) the notice did not give the particulars of tampering as asserted at para 7 of the statement of claim:

1) The sticker at the back of the connection box was tampered with or cut and a fake seal was used on the connection box behind the switchgear;

2) The Circuit SI and S2 for the red, yellow and blue power supply was intercepted with a wire; and

3) The electricity meter that had been installed was not recording the actual usage of the electricity by the consumer.

(f) At all times, the meter was read by the TNB meter reader every month and the respondent had paid the amounts in the billings.

(g) The respondent denied liability for the amount claimed on the grounds that the increase amounted to 27%, whereas the bills before and after the inspection were roughly the same, and put the appellant to strict proof.

The Issues For Trial

[6] The issues for trial were listed as follows:

"1. Sama ada plaintif perlu memenuhi peruntukan undangundang untuk mengisukan apa-apa Notis memberitahu tentang pemeriksaan ke atas meter plaintif di premis defendan.

2. Sama ada ada atau tidak defendan telah melakukan pengusikan pada pepasangan meter/meter plaintif.

3. Sama ada ada berlaku atau tidak kejanggalan kepada pepasangan meter/meter plaintif.

4. Sama ada plaintif telah bertindak menurut Akta Bekalan Elektrik 1990.

5. Jika benar berlaku kejanggalan kepada pepasangan meter/meter plaintif, Sama ada defendan berhutang atau tidak wang berjumlah RM443,598.77 kepada plaintif.

6. Sama ada plaintif perlu memenuhi dan mengikut peruntukan di " Licensee Supply Regulations 1990 "."

Submissions At Trial

[7] We reproduce the issues pursued in submissions for the respondent in the High Court:

"9.1 Tindakan defendan pada masa yang material selepas pemeriksaan pada 15 May 2008 adalah tidak konsisten dan tidak munasabah;

9.2 Defendan telah membayar bil bulanan seperti yang ditetap