- TNB官员在24.3.2014到业主的家检查电表时，发现电表的Test Terminal Block 处发现一块磁铁，这导致电表出现错误的读数。TNB之后在19.4.2014于第二次的突击检查时，发现该住户的电表再次被篡改，TNB在当天更换了新的电表。
- TNB之后依据新电表，平均算了该住户每一个月的用电，然后back billing 5年。这是因为TNB发觉业主在电费在5年里并没有sudden drop的现象，所以估计业主在5年前已经开始偷电。TNB通过高等法庭要求业主赔偿 RM1,035,074.45的损失
- 业主表示TNB并无法证明到底是谁篡改了电表；然而法庭表示在1999电力供应法下，TNB不需要证明谁偷电，他们只需要证明他们的人员发现业主偷电就可以了…we take the view that it is not necessary for TNB to prove the identity of the person who damaged or tampered with the meter.”Thomas Thomas @ Mohan Thomas V. Tenaga Nasional Bhd  4 CLJ 340
- TNB用19.4.2014换的电表来计算back billing，法庭认为此算法是正确的。This court is of the view that while the end result of the “Fomula Purata” and the “back billing” methods is essentially an estimation or approximation of the loss of revenue incurred by the plaintiff, it is an appropriate and reasonable approach in the circumstances as an amount in exactitude of such loss is invariably a near impossibility to achieve.
- Back billing的计算法虽然不能准确计算到底偷了多少电费以便叫业主付款，但是由于没有比这更好的方式计算TNB的损失，所以“Back billing”的计算法是最合适的。
- This matter came up for decision on the 21.12.2017 whereby the plaintiff’s claim in enclosure 2 was allowed. During the course of the trial, the plaintiff called 3 witnesses, all servants of the plaintiff. The defendant’s sole witness was it’s managing director.
Background of the case
- The plaintiff supplies electricity to the defendant’s quarry at Lot 34340, Mukim Sg Raia” Mukim Sg Raia, 31300 Kg Kepayang, Perak (the premises). The defendant was registered with the plaintiff for the supply of electricity under account number 0210-00115410.
- A meter was placed at the defendant’s premises to measure electric current usage. On the 24.3.2014 at about noon, SP1 (Mohd Amir Bin Brahim), SP3 (Mohd Khairol Shahmeer B. Mat Khairi) and together with another colleague arrived at the defendant’s premises to inspect the meter. On arrival, they informed the defendant’s worker the purpose for their visit and requested that the worker accompany them in the inspection of the meter. SP1 and SP3 observed that the meter was installed in an unlocked room.
- During the course of his inspection, SP1 also observed that the seals and the Test Terminal Block (TTB) were in good condition. However, something triggered his suspicion that the meter was being tempered with when he found a metal plate placed in the TTB which was not supposed to be there. His examination revealed that the metal plate diverted the electrical current flow which caused the meter to give an inaccurate reading. SP1 subsequently showed the person in charge of the quarry, Lee Miang Chooi (SD1) the metal plate placed in the TTB and asked him to observe the inspection being carried out. SD1 is the managing director of the defendant.
- In his evidence SP1 explained that the current flowed from the current transformer (CT) through the TTB and thereafter to the meter to be recorded. With the insertion of the metal plate at the TTB the current could not effectively reach the meter. He illustrated this in court by way of a diagram which was marked P3.
- As a result of the insertion of the metal plate, the meter readings from the busbar to the red, blue and yellow phases showed a much lower reading than the actual current flow. By using the “test set” the average meter error recorded was -47.637% which meant that the meter failed to record 47.637% electricity usage. The test set was calibrated by Tenaga National Berhad on 6.3.2014. The certificate of calibration was marked as P4.
- The metal plate which caused the distortion in the meter readings was tendered in court as P2. A police report was subsequently lodged. The inspection process at the quarry was documented in the form of photographs which were duly tendered in court. SP1 then issued a “Borang Pemeriksaan dan Pengujian Meter” (P5), “Pemakluman Semakan Pemasangan” (P6) and “Surat Pemberitahuan Pengambilan Bahan-Bahan Bukti” (P7) to SD1. These documents were signed by SD1 on behalf of the defendant company.
- The whole process of the inspection and the discovery of P2 were recorded in the photographs marked P8. The photographs included SD1 being present during the inspection on the 24.3.2014. SP3 corroborated the evidence of SP1 in material particulars.
- SP2 was an engineer at the “Seksyen Jaminan Hasil Zon Utara” at the “TNB Bandar Baru.” Part of his duties was to detect any tampering of meters as well as to ascertain the loss incurred by the plaintiff as a result of meter tampering. SP2 stated that according to P5, the result of the inspection of the meter by SP1 on 24.3.2014 showed that there was such evidence of tampering of the meter. For this case SP2 states that the calculations were made by computer which analysed the data of electricity usage. This information was downloaded from what is known as the ECIBS system to the software. The ECIBS contains the history of electricity usage of the customer. The data was prepared by SP2 himself. During the course of giving evidence SP2 referred to “Pengurangan Amaun Terkurang Caj” (P11). “Jadual Purata Penggunaan” (P12) and “Graf Purata Sehari Penggunan KWH” (P13). SP2 also explained how the amount of RM 1,035,074.46 was derived with reference to these documents. These documents were computer generated and admissible under section 90A of the Evidence Act.
- According to SP2 the formula used to determine the loss of revenue by the plaintiff caused by the meter tampering was by taking the reading of the average usage from 3.10.2014 to 1.1.2015 which amounted to 2127.72 kwh per day. This figure was then used as a point of reference in calculating the back billing from 24.3.2014 (the date the tampering was detected) to 8.4.2009. The derived average took into consideration “public holiday, school holiday, mesin rosak”. In addition, SP2 said that this was a form of non-permanent tampering. The meter reader would not have noticed P2 as it could have been removed at the time the reading was taken. Another reason was because the meter reader did not have the expertise to detect meter tampering since P2 could be inserted and removed at any time.
- A point to note here is that there was a subsequent tampering of the meter after 24.3.2014. The second tampering was on 19.4.2014 concerning the changing of components in the meter. This is apparent from the evidence of SP2 at pages 63 to 66 of the “Nota Keterangan” and exhibit marked P19 which is a receipt of payment for the second tampering. According to SP2 the second tampering had therefore been fully settled. Because of the second tampering the plaintiff had to change the meter and relocate the new meter to a TNB substation to prevent further tampering. Apart from this, the electricity supply to the defendant was disconnected from 8.7.2014 to 3.10.2014.
- According to SP2 the methodology for the calculation of loss of revenue is allowed under the guidelines issued by the Energy Commission (P16). The relevant portion in Paragraph 5.3.2 of the guideline states:
Tempoh Pengiraan Tuntutan Amaun Kerugian Hasil
Bagi kes yang tiada sudden drop:
di mana kesalahan disyaki telah dilakukan dari tarikh bekalan dimulakan, kiraan tempoh kehilangan unit bermula dari tarikh bekalan diberikan sehingga tidak melebihi lima (5) tahun; atau
di dalam kes-kes lain, kiraan tempoh kehilangan unit dikira daripada tarikh kesalahan ditemui ke belakang tidak melebihi lima (5) tahun.
- Finally, SP2 stated that a notice dated 10.6.2015 was issued by the plaintiff to the defendant which was marked P17. This notice, according to learned counsel for the plaintiff was in accordance with Section 38(4) of the Electricity Supply Act 1990 (the Act). A legal notice issued by the plaintiff’s solicitors to the defendant claiming for the sum owed was marked as P18. The plaintiff also informed the court that the notice sent by the plaintiff (P17) and the legal notice (P18) constituted a written statement as envisaged in Section 38(4) of the Act.
- Subsequently the plaintiff instituted the present claim for the loss of revenue and expenses due to the tampering of the meter amounting to RM1,035,074.45. The basis for their claim is Section 38(3) (4) and (5) of the Act.
- SD1 stated that he had been paying his electricity bills regularly as evinced in D21 of the Ikatan Dokumen Defendan. He vehemently denies any involvement in the tampering of the meter. He also denies having knowledge of the contents of P5, P6 and P7. He claimed that the contents were never explained to him by SP1 or SP3 at the time of the inspection. He signed these documents because he was asked to sign them by the inspection team. According to SD1, the meter was placed in an open area in an unlocked room where anyone could have access to it. He however admitted that he had paid the plaintiff RM 12,917.19 for the second tampering.
Issues to be considered
- The issues that arose during the trial were:
i) whether the defendant’s servants or agents caused the meter tampering
ii) was the plaintiff’s method in calculating the loss of revenue correct?
iii) did the plaintiff send a valid written statement to the defendant pursuant to Section 38(4) of the Act? and
iv) whether the plaintiff’s claim was time barred because of limitation.
Who did the tampering?
- The defendant argues that there was no proof that it or its agents or servants had tampered with the meter. The fact remains, however, that P2 was found in the TTB and it had altered the current flow to the meter. The evidence of SP1 and SP3 remained unshaken on this point. Apart from SP1’s evidence that he had physically seen P2 at the TTB there is also the evidence of SP2 who had analysed the information prepared by SP1 in P5 (Borang Pemeriksaan dan Pengujian Meter) and the ECIBS system which concluded that the meter had been tampered with.
- From the reading of section 38(1) of the Act, the prerequisite for the disconnection of the electricity supply is when an employee of the plaintiff: “finds upon any premises evidence which in his opinion proves that an offence has been committed under subsection 37(1), (3) or (14)”. I am of the view that the wording of section 38(1) itself indicates that the plaintiff need only show that based on the subjective opinion of SP1 and SP3 the meter had been tampered with. There is no further requirement for the plaintiffs to prove the identity of the person who caused the tampering. 电讯局不需要证明谁偷电，他们只需要证明他们的人员发现业主偷电就可以了。
- Support for this proposition is found in the Court of Appeal case of Thomas Thomas @ Mohan Thomas V. Tenaga Nasional Bhd  4 CLJ 340 where the Court of Appeal stated in clear terms that: “For purposes of a claim under s. 38(3) to (5), we take the view that it is not necessary for TNB to prove the identity of the person who damaged or tampered with the meter.”
Method of calculating loss of revenue
- The next issue that was contended by the defendant was the method used by the plaintiff in calculating and arriving at the figure of RM1,035,074.45 as claimed by the plaintiff. The defendant asserts that the method is bias against the defendant and cannot be substantiated. In justifying the method used SP2 stated that the figure was derived by calculating the average use of electricity for the last 5 years from the date of detection of tampering. This process was known as “Fomula Purata”. The figure derived was in effect an estimation or approximation.
- In more specific terms the defendant disputes the back-billing procedure. It was challenged that there was no reason for the back billing to extend up to 5 years. It was further contended that this was an arbitrary decision which was unfair to the defendant. Learned counsel for the defendant also contended that the inaccuracy of the formula used was further exacerbated by the fact that the meter change in 13.4.2012 was purportedly due, to the meter being spoilt (rosak). Finally learned counsel submitted that there was no accuracy test conducted on the third meter changed which took place on 19.4.2014.
- As for the reason for the 5 years back billing period, this court accepts the explanation given by SP2 as to why the 5-year period was taken. According to SP2 this was allowed under the guidelines issued by the Energy Commission of Malaysia. The Energy Commission, is a statutory body established under the Energy Commission Act 2001 is responsible for regulating the energy sector, specifically the electricity and piped gas supply industries in Peninsular Malaysia and Sabah. The Energy Commission has all the right and expertise to issue such guidelines, known as “Garis Panduan Prosedur Tuntutan Kerugian Hasil”.
- It was explained by SP2 that there was no ‘sudden drop’ in the usage. By ‘sudden drop’ he meant “penurunan mendadak.” That being the case the above-mentioned calculation as per the guidelines was followed. It is observed that the guidelines disallow the plaintiff to back bill more than five years back which explains why the back billing ended on 8.4.2009.
- This court is of the view that there was no arbitrariness in following the guidelines in the circumstances of this case. It is therefore clear that the plaintiff had complied with the procedures set forth under the guidelines and must be considered correct and accurate, unless proven otherwise by the defendant. See TNB v. Arkitek Urbanisma Sdn Bhd  10 CLJ 796.
- It is perhaps relevant at this point to state what the Court of Appeal said in the case of Tenaga Nasional Berhad V. Asia Knight Berhad  1 LNS on the point of back billing. This case also is concerned with a foreign object being inserted in the meter to induce an inaccurate reading. The other point to note is that there was a change of meters in the intervening period of six months before the inspection date. The Court of Appeal stated as follows: “PW4’s evidence was comprehensive, consistent and credible and demonstrates how the estimate is arrived at in calculating the back charges to be imposed. The defendant has not demonstrated that the back charges to be manifestly unreasonable, excessive or wrong. In her written judgment, the learned judge decided that the plaintiff was not entitled to the loss of revenue and expense ‘berdasarkan kepada keterangan saksi plaintif pengiraan jumlah terkurang caj daripada 9/2008 – 9/2010 adalah tidak betul dan sangat memprejudiskan defendan apabila penukaran meter baru dibuat pada Mac 2010.’ We are also constrained to find that the learned judge had failed to judicially appreciate the evidence and that if she had done so, she would have found that the plaintiff had established their claim for the loss of revenue on a balance of probabilities.” 虽然TNB官员在发现电表被动过手脚的6个月前换过一个新的电表，法庭觉得TNB还是可以追溯09/2008 – 09/2010的电费(back charges)，虽然在03/2010电表才换了一个新的(这个案件真的莫名其妙) 。
- Regarding the first meter change on 13.4.2012 because it was allegedly spoilt, this court is of the view that there is no evidence to show that the meter change on 13.4.2012 had anything to do with it being spoilt. As stated by SP2, the reason for the change was because the plaintiff was upgrading their services and, in the process, had to change the modem. This in turn necessitated the change of the meter to make it compatible to the new modem. Thus, this court is of the view that the change of the meter did not cause any inaccuracy in the reading. In this respect too the defendant had not produced any other evidence to indicate that the change of the first meter was due to any defect. 业主提出，在13.4.2012的时候，TNB有更换电表。业主提出，这个更换了的电表坏了，出问题，导致读取电表不能正确读取电流。但是业主只是空说，没有提出任何证据，证明电表出了问题。
- On the issue of there being no accuracy test carried out on the third meter, the learned counsel for the plaintiff began by submitting on the reasons for the change of the third meter. SP2 in his evidence stated that the second meter had to be changed because there was evidence of a second tampering detected on the 19.4.2014, hardly one month after the first tampering was detected. On this occasion the tampering concerned changes in the components of the second meter which necessitated the change to the third meter. In contrast there was no requirement to change the meter at the time of the first tampering because the tampering was of a non-permanent nature where the metal plate P2 could be inserted and taken out at will. 电讯公司在第一次突击的时候没有换电表是因为业主使用能随时能移走的磁铁偷电，所以就算换新的电表，业主也依然会放回磁铁。
- The starting date for the calculation of the average reading was 3.10.2014 because after the second tampering, the electricity supply to the defendant’s premises was disconnected from 8.7.2014 to 3.10.2014. It was restored on the 3.10. 2014, hence the relevance of that date.
- First and foremost, there does not seem to be any evidence that the third meter was in any way inaccurate. There was no challenge made as to the accuracy of the third meter. Neither was there evidence of any complaint made by the defendant after SD1 had settled with the plaintiff in respect of the second tampering which caused the third meter to be installed. The defendant’s own Bundle of Documents (D21) at pages 57 to 60 shows that payments were made without any complaint after the installation of the third meter. I agree with learned counsel for the plaintiff Regulation 11 of the Licensee Supply Regulations 1990 (made pursuant to section 53 of the Electricity Supply Act 1990) would be applicable in this instance and the reading of the third meter is prima facie evidence of the amount of electricity consumed during the period when the average reading was taken. 电讯局用第三次换的电表来计算平均的电费。法庭觉得最新的电表计算的电费是正确的，此表计算的电费可以用来计算back billing。
- This court is of the view that while the end result of the “Fomula Purata” and the “back billing” methods is essentially an estimation or approximation of the loss of revenue incurred by the plaintiff, it is an appropriate and reasonable approach in the circumstances as an amount in exactitude of such loss is invariably a near impossibility to achieve. The back billing was a necessary feature in such cases so as to afford an estimate revenue lost to be ascertained due to the tampering.
- It is also this court’s view that the amount claimed by the plaintiff has to be proved upon a balance of probabilities. It is a claim for back billed sums due to meter tampering which is unavoidably based upon an estimate method of assessment to derive the loss of revenue to the plaintiff. This estimate is to be accepted unless it can be shown that there is a manifest error of which there is none shown by the defendant in this case. Neither was any device revealed to this court capable of measuring the plaintiff’s loss with exactitude or precision. see Tenaga Nasional Bhd v. Bright Rims Manufacturing Sdn Bhd  MLRAU 485. The Statement under Section 38(4) of the Act. “回账计算”的计算法，虽然是不能准确计算到底偷了多少电费以便叫业主付款，但是TNB没有以更好的方式计算它的亏损，所以“回账计算”的计算法是合适的。
Statement under Section 38(4) of the Act
- Back to the present case, a statement dated 10.6.2015 purportedly under section 38(4) of the Act was tendered as P17. A lawyer’s letter of demand dated 26.8.2015 was also sent to the defendant and was tendered P18. During submissions the learned counsel for the plaintiff submitted that although P17 did not conform to section 38(4) in that there was no certification by the plaintiff or any person authorized by the plaintiff it was nevertheless a written statement under section 38(4) which is prima facie evidence that the amount of RM 1,035,074.46 was due and payable by the defendant to the plaintiff.
- Plaintiff counsel depended substantially on the case Tan Tee Peng v. Tenaga Nasional Berhad  1 LNS 574 where the High Court in that case stated as follows:
“Perusing the wording as contained in section 38(4) above, it is evident that the purpose of the section is to bring to the notice of the customers of the Respondent, the quantum of loss and the method of calculation showing how the figure alleged to be owed is arrived at. The said section does not stipulate any particular format where the information required is to be contained. The statement containing such particulars stands as prima facie evidence of quantum of loss of revenue but does not preclude the defendant from challenging quantum as well as liability. If sufficient evidence to the contrary is forthcoming from the defendant, such prima facie evidence can be displaced.
 From a consideration of the said section and upon considering submissions of parties, I find that there is no particular format required in order that the provisions in the section are satisfied. I therefore agree with the submission of learned counsel for the Respondent that issuance of the letter of demand by the Respondent and notice of demand from the solicitors constitutes compliance with the provisions in section 38(4) of the Electricity Supply Act 1990.”
- On the basis of Tan Tee Peng v. Tenaga National supra this court admitted P17 and P18 as prima facie evidence that the sum of RM 1,035,074.46 is to be paid by the defendant to the plaintiff. P17 was headed “Surat Tuntutan Amaun Kerugian Hasil (Amaun Terkurang Caj) dan Perbelanjaan Akibat Mengganggu Ubah Pinda /Merosakkan Pemasangan Meter Tenaga National Berhad”. It specifically mentions the defendant as the registered owner. Paragraph 3 of P17 stated the amount owed as RM 1,035,074.45. Paragraph 4 particularly mentions the claim was for the sum being the loss of revenue and expenses. It further states that the claim was pursuant to section 38(3), (4) and (5) of the Act. Lampiran A to P17 presents a breakdown of the sum to be paid. Annexed to the notice is a photograph of the meter concerned with the handwritten words “Pemasangan Meter Terdapat Besi Plat Pada TTB”. The defendant was given 14 days to pay the amount stated in the notice. It was signed by Hafizah Binti Mat Razi on behalf of the Regional Manager Ipoh.
- It is this court’s finding that the details in P17 substantially complied with section 38(4) of the Act so as to give notice to the defendant of the impending action against him. P18 is the legal notice of demand which further provides details of the tampering and 14 days to make payment.
The applicability of section 6(1) of the Limitation Act
- Learned counsel for the defendant contended that time had begun to run from 8.4.2009 for the plaintiff to bring an action against the defendants. According to his calculations the 6-year limitation period would end on 7.4.2015. The present cause of action commenced on 2.10.2015 with the filing of the writ. The plaintiff was therefore about 6 months out of time and the action was statute barred. Learned counsel depended on the cases of Sampo Materials (M) Sdn Bhd v. Tenaga National Berhad Ipoh High Court Guaman No: 22 NCV-105-10/2015 and Tenaga National Bhd v Kamarstone Sdn Bhd  1 CLJ 207. The plaintiff on the other hand contended that the cause of action in this case accrued when the tampering was first discovered on 24.3.2014.
- In my view the two cases depended upon by learned counsel for the defendant can be distinguished on their facts. In both Sampo Materials (M) Sdn Bhd and Kamarstone Sdn Bhd the court construed the plaintiff’s claim as one of which there was a debt due from the defendant consumer to the plaintiff. They were not seen as “meter tampering” cases. Thus, in the case of Kamarstone Sdn Bhd, the Federal Court stated that:
“Between October 1996 and October 2002, the appellant had a right, albeit undiscovered, to the shortfall, which was a debt due from the respondent. Except that the shortfall was not discovered until years later, in January 2003. Nevertheless, it remained that between October 1996 and October 2002, the appellant was paid less than the sum calculated on the correct multiplier. The shortfall was incurred during that period.”
- Learned counsel for the plaintiff relied on 3 cases to put forward their point that in “tampering” cases the cause of action accrued at the time the tampering was discovered. According to learned counsel the situation is best exemplified in the case of Poon Wai Mung v. Tenaga National Bhd (2012) l LNS 712 the court held that : ‘…. the cause of action accrued on the date when the Plaintiff discovered the tampering of the meter. Even if the loss of revenue relates back to a period of after 6 years, the fact that the defendant had a running account with the Plaintiff for the supply of electricity negates the contention that time had set in.
Reference was also made to the cases of Pahlawan Sendirian Berhad v Tenaga National Bhd (Rayuan Sibil No. J-01(IM)455-2010) and Ong Cheng Kiong v Tenaga National Bhd (2013) I LNS 649 where the same reasoning was given by the court in concluding that the cause of action accrued when the tampering was first discovered by the plaintiff.
- In the upshot I am of the view that the cause of action in this present case commenced upon the discovery of the tampering of the meter on the 24.3.2014. The writ was filed on the 2.10.2015 which was well within the six-year time frame set by section 6 of the Limitation Act 1953.
- Based on the above reasoning, the plaintiff’s claim together with interest is allowed and cost of RM8,000 awarded to the plaintiff.
Source: Tenaga Nasional Bhd v Syarikat Sim Quarry Sdn Bhd  MLJU 332. High Court Ipoh. Anselm Fernandis JC.
Section 38 Disconnection of supply of electricity
(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 subsection 37(1), (3) or (14), the licensee or any person duly authorized by the licensee may, upon giving not less than twenty-four 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 section 21A of the Common Gaming Houses Act 1953 [Act 289], the supply authority or the licensee or any person authorized 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 subsections 37(1), (3) and (14) and any expenses incurred by the licensee under this section including expenses incurred in respect of the reconnection of electricity supply.
(4) A written statement by an employee of the licensee duly certified by the licensee or any person authorized by the licensee specifying:
(a) the amount of loss of revenue or the expenses incurred by the licensee; and
(b) the person liable for the payment thereof,
shall be prima facie evidence of the payment that has to be made by the consumer under subsection (3).
(5) The amount stated in the written statement shall, within the period specified in the statement, be due and payable to the licensee and in default of payment such amount shall be recoverable by civil action in a court.
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#磁铁偷电 #TNB用新的电表计算了3个月后的用电(3.10.2014 to 1.1.2015 ), 平均算了每一个月的用电，然后back billing 5年，因为TNB发觉业主用电的5年里并没有sudden drop的现象，所以估计业主在5年前已经开始偷电。