'I Didn't Tamper with My Meter! My Tenant Did!': The Laws on Meter Tampering

Imagine this: you are the landlord of a house somewhere in Kuala Lumpur, which you have been renting out over the past 12 months. One day, you visit the house to retrieve some mail and find, to your dismay, a demand from the electricity supplier that you, the registered consumer, must pay for the loss of revenue due to meter tampering discovered at your house. 

If you are reading this, you might be in a situation where your tenant has tampered with the electricity meter, for which you are held liable. What can you, as the landlord in this unfortunate scenario, do?  

The relevant provisions 

The supply of electricity is governed by the Electricity Supply Act 1990 (ESA 1990). Sections 37(1), (3) and (14) of the ESA 1990 provide that acts such as meter tampering, dishonestly consuming electricity, and damaging any meter amount to offences with the penalty of a fine or imprisonment or both. 

Consequently, sections 38(3) to (5) of ESA 1990 provide that, among others, a licensee has the right to commence an action against the registered consumer to claim for losses of revenue, costs, and expenses arising from the offences as stated above.  

“I didn’t tamper with the meter, it was my tenant!” - can this be argued? 

The short answer is NO. 

This argument was raised by the appellant in the case of Thomas Thomas@Mohan a/l K Thomas v Tenaga Nasional Berhad & Ors [2017] MLJU 70 (“Thomas”). The Appellant argued that he should not be held liable as he was not the occupier of the premises and therefore not the consumer of the electricity. 

The Court of Appeal in Thomas followed the decision in Tenaga Nasional Bhd v Empayar Canggih Sdn Bhd (previously known as ODVD Manufacturer Sdn Bhd) [2014] 8 MLJ 280, where it was held that it was the registered consumer that was responsible as the power and supply agreement with TNB was in their name.  

Further, Thomas held that dismissing a claim simply because the registered owner did not commit the offence would amount to an absurdity, as this would allow registered consumers to be absolved of liability if they were, in the words of Abdul Rahman Sebli JCA, 

“‘ingenious’ enough to engage a third party to damage or tamper with the meter in preparation for his refusal to pay for any loss of revenue suffered by TNB resulting from the tampered or damaged meter.” 

What about commencing a third-party action? 

This may be the registered consumer’s only option. In Thomas, Abdul Rahman Sebli JCA stated that the appellant still had the option of pursuing a third-party action against the tenant, under Order 16 Rules of Court 2012. 

The nature of the third-party action would be to seek indemnity from the third party (in this context, the tenant) who may be liable to the registered consumer. 

In the case of Fun N Cheer World Sdn Bhd v Ldp Promotion Fair Sdn Bhd [2020] MLJU 1012, the registered consumer’s third-party action against the tenant was allowed. In his judgment, Tee Geok Hock JC provided the following examples/situations where the registered consumer may claim for indemnity against a third person: 

1. where there is an express term for indemnity in the contract between the account-holder and the third person;
2. where the circumstances are such that equity imposes an obligation upon the third person to indemnify; or
3. where the statute provides for such indemnity

Conclusion 

Landlords are prevented from passing on the liability of meter tampering to their tenants, even though it was the latter that committed the act. 

However, landlords are not left without recourse, as they may commence a third-party action against the tenant for indemnity or contribution. 

In the circumstances, it would be advisable for landlords to execute a change of name of the registered consumer, during the tenancy, whereby the tenant becomes the registered consumer and would therefore be liable for any offences committed.