An appellant must provide sufficient evidence to prove both liability and quantum under section 38 of the Electricity Supply Act, regardless of alleged tampering.

[1] The appellant/plaintiff appeals against the decision of the learned High Court Judge in refusing to allow the claim related to 'tampered meter' and allowing the respondent's/defendant's counterclaim for the return of RM250,000.00 paid to the appellant under protest.

Brief Facts

[2] The facts of the case and issues have been set out in the 15 pages' judgment of the learned trial judge and also in the submissions of the parties. We do not wish to repeat save to summarise as follows:

(i) The appellant claims its meter has been tampered and the respondent customer has to pay for the loss of revenue, etc as per s 38(3) of Electricity Supply Act 1990 ( ESA 1990);

(ii) The respondent says the meter was in the custody and control of the appellant who had the keys to the locked room in which the meter has been placed; and in consequence they are not liable as the appellant has not proved the respondent has tampered the meter;

(iii) The appellant has disconnected the electricity supply and in consequence the respondent had paid RM250,000.00 in protest for the supply to be reconnected;

(iv) The appellant's claim related to the back billing which consist of two accounts namely: (i) RM1,386,937.11 and (ii) RM487,050.66. As the respondent has paid under protest RM250,000.00, the appellant's claim is limited to RM1,623,987.77, as per the statement of claim;

(v) The respondent says no particulars were given for the purported statement made by the appellant's representatives at any time before the action as well as trial and only an estimated amended statement was submitted during the trial. The respondent also alleges that no certificate pursuant to s 38(4) was issued according to law and the appellant also ordinarily did not prove its claim according to law and in consequence the appeal must be dismissed. Further, the respondent says s 38 was not pleaded in the statement of claim.

[3] The appellant's claim is anchored on a 38 of ESA 1990 which reads as follows:

"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 s 37(1), 37(3) or 37(14), the licensee or any person duly authorised by the licensee may, upon giving not less than 24 hours' notice, in such form as may be prescribed, cause the supply of electricity to be disconnected from the said premises.

(1A) Notwithstanding any other provisions in this Act, where a police officer not below the rank of Assistant Superintendent applies to a supply authority or a licensee for the disconnection of the supply of electricity to any premises for a period not exceeding one calendar month under s 21A of the Common Gaming Houses Act 1953 (Act 289), the supply authority or the licensee or any person authorised by the supply authority or the licensee shall immediately disconnect or cause the supply of electricity to be disconnected from those premises.

(2) If the supply of electricity has been disconnected under subsection (1), it shall not be reconnected until the licensee at his discretion gives permission for reconnection:

Provided that the period of disconnection shall not exceed three months.

(2A) Notwithstanding subsection (2), if the supply of electricity has been disconnected under subsection (1A), it shall not be reconnected without the written permission of a police officer not below the rank of Assistant Superintendent.

(3) The licensee may require the consumer to pay him for the loss of revenue due to the offence committed under subsection 37(1), 37(3) and 37(14) and any expenses incurred by the licens