GREENERY PARTNERS & NETWORKS SDN BHD v Tenaga Nasional Berhad (TNB)

Case Significance

Applies the section 38(4) presumption of the Electricity Supply Act 1990 to a meter-tampering revenue claim while confirming that the recoverable quantum must be tied to the evidenced period of loss, supporting a downward variation of the award.

This High Court decision at Shah Alam concerns a civil appeal by an electricity customer against a Sessions Court judgment that had allowed Tenaga Nasional Berhad's statutory claim for lost revenue arising from meter tampering. Tenaga Nasional Berhad, the licensee, had obtained judgment of RM156,244.95 against the appellant customer under sections 38(3) and 38(4) of the Electricity Supply Act 1990 in respect of unrecorded electricity consumption at a double-storey shophouse. The pleaded tampering consisted of direct connections from the busbar to the premises that bypassed the meter across all three phases and the neutral. On appeal the customer challenged, among other things, the proof of tampering, the admissibility of documents tendered without their maker being called (invoking section 73A of the Evidence Act 1950), and the reliability of the utility's revenue-loss computation, pointing to the absence of a certificate of calibration for the ammeter used in the assessment. The High Court examined how the statutory presumption under section 38(4) of the Act operated and what evidence was needed to displace or support a loss-of-revenue claim, observing that where precise measuring evidence is unavailable a court must do the best it can on reasonable and fair approximation. On the facts, the Court found no proper basis to back-charge the customer for the period before the tenant took occupation in the July–August 2018 window when the illegal bypass cabling was installed. It therefore dismissed the appeal against liability but varied the Sessions Court award, reducing the principal sum from RM156,244.95 to RM121,867.16 by deducting the adjusted billed amounts for June 2018, July 2018 and half of August 2018. The Court ordered costs of RM5,000.00 to the respondent utility. The judgment is a useful illustration of how the courts apply the section 38 presumption while insisting that the quantum of loss remain anchored to the available evidence.