TNB Case Summary: Ichi-Ban Plastic (M) Sdn Bhd v Tenaga Nasional Bhd [2014] 6 MLJ 461

Facts: The said case, TNB sued the Ichi-Ban RM1,065,318.73 for tampering its meter under section 38(3) of the Electricity Supply Act 1990 (ESA).

TNB pleaded that an inspection by its personnel had shown that the meter had been tampered with and underrecord the usage of electricity.

It was later discovered that a miswiring was done by TNB itself. Following that, the High Court allowed the claim although Ichi-Ban is not found guilty of tampering with the meter but simply because a consumer should not be unjustly enriched by not paying for use of unrecorded electricity.

In the instant appeal, Ichi-Ban contended that the sum that TNB claimed is not proven because the evidence showed the calculations are based on estimations and guess-work.

Decision: the Court of Appeal allowed appeal and set aside the High Court's decision

Principles held:

(1) The evidence provided by TNB was too uncertain and inconclusive. The burden to prove liability and to prove the quantum of the loss of revenue was not discharged. There were serious shortcomings in the quality of evidence produced by TNB at the trial.

There was a misdirection by the trial judge as there was no proper assessment of the pleadings and the evidence. In particular, the High Court gave insufficient attention to when the miswiring took place.

TNB could not prove that the miswiring occurred after the detection of the alleged tampering.

(2) On damages, the court found it difficult to support the calculation done by TNBs witness, PW2, on the basis of an average and with regard to the basis periods. The court agreed with Ichi-Bans that the averaging method was more on the basis of a guess which cannot be trusted.