TNB Case Summary: Nikmat Maju Development Sdn Bhd v Tenaga Nasional Bhd [2015] 4 MLJ 502

Facts: Nikmat Maju operated a hotel called the Crystal Crown Hotel in Petaling Jaya and was a registered as consumer.

The electric meter (the TNB meter room) which is within the hotel but was secured by lock and key held in the possession of TNB.

Over span of over a year, TNB discovered suspicious discrepancies in the usage of electricity. A physical inspection showed that the meter had been tampered, resulted in an under-recording of 32.44%.

Following that, TNB demanded RM637,697.62 from Nikmat Maju and thereafter this civil suit.

Nikmat Maju argued that:

(a) TNB is prevented from making the claim because it had custody of the meter room which was kept under lock. Therefore, any inaccuracies would have been detected during their monthly visits to issue the electricity bills.

(b) TNB had not charged them for any offence under the Electricity Supply Act 1990 (‘the Act’) which is the pre condition to the RM637,697.62 claim.

(c) the method of calculation was unreasonable.

The High Court judge allowed TNB’s claim but dismissed Nikmat Maju's counterclaim for defamation. Hence, the appeal.

Decision: the appeal on main claim is allowed but appeal on counterclaim is dismissed.

Principle (s) held:

(1) A claim for defamation cannot be supported as TNB was merely exercising its powers under s 38 of the Act where there was evidence of tampering of the TNB meter. It was TNB's right to issue demand letters.

(2) A prosecution for an offence is not a precondition for a civil action for recovery of loss of revenue under s 38(3) of the Act.

(3) The evidence indicated that the TNB meter room was just outside the hotel’s main buildingm kept under lock but TNB had failed to establish Nikmat Maju's employees had access to the meter room.

(4) It was patently unfair to bill the undercharged consumption on a monthly basis and not actual days for 22 months to arrive at the huge figure of RM637,697.62. Most businesses will be crippled by this sort of calculation, The respondent had not proven its damages.

(5) Nikmat Maju that everything was in order only to be later billed for more than half a million Ringgit for the alleged under billing. TNB, by its own admission, had a sophisticated system of remote monitoring and yet it chose not to act promptly and remedy the alleged defects in the system. It would be unfair to impose liability by TNB's own lack of sense of immediacy.

Further, the method of calculating the back billing was erroneous since the same sophisticated monitoring system could calculate the exact loss of revenue on a daily basis, and it was admitted by the respondent’s witnesses that the discrepancies occurred.

(6) The High Court rejected the argument on the unreasonableness of the calculation partly because it was not expressly pleaded. However, the notes of evidence did not show that any objection on this score was raised. There was no element of surprise to TNB by the inclusion of this ground.