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The defendant is licenced to supply water to
consumers under the Water Supply Enactment 1998 (the Enactment). The
licencee is under a statutory duty, on application in writing by the
owner or occupier of any premises (see s 35(1) of the said Enactment),
subject to s 40, to supply water. Sometime in October 2003 the defendant
cut off the plaintiffs water supply on the basis that the plaintiff had
refused to settle his water bill.
THE APPLICATION
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Having issued out a writ against the
defendant, the plaintiff took out a summons and prayed for:
(a) |
a mandatory interim injunction
preventing the defendant or its servant or agent from cutting off
the water supply to the plaintiffs premises; |
(b) |
the costs of re-connecting the water
supply to be borne by the defendant; |
(c) |
costs. |
FINDINGS OF THE
COURT
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The plaintiff supported his application with
an affidavit in which he stated that sometime in 1999 he requested from
the defendant a supply of water to his premises. The defendant having
received his written application opened an account in the name of the
plaintiff namely account No 98680142026 with an ID No of 1996-000-233-5.
The defendant then subsequently issued a bi-monthly bill to the
plaintiff which never exceeded RM25 for every two months. The plaintiff
accordingly promptly paid each bill. Suddenly in September 2002 the
plaintiff was surprised to receive a bi-monthly bill for RM3,047.02. The
plaintiff then lodged a formal complaint with the defendant's branch
office at Jawi and the said complaint was then referred to the
defendant's head office at KOMTAR.
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The plaintiff also went to the defendant's
office at KOMTAR and met with the defendant's officers and he
specifically named two such officers who were unable to assist him and
explain why his bill had risen meteorically. However the said officers
insisted that the plaintiff settle the exorbitant bill.
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The plaintiff refuted the said bill but was
willing to pay the subsequent bills. However the defendant's officers
refused to accept payment of the subsequent bills unless the sum of
RM3,047.02 was settled.
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The defendant however agreed to conduct an
examination of the pipe leading to the plaintiffs premises and did so
sometime in March 2003. As a result thereof the defendant sent a letter
dated March 27, 2003 to the plaintiff informing him that there was no
leakage of the pipe and insisted on full payment of the said sum by the
plaintiff. When the plaintiff refused to settle that bill but was
willing to settle the subsequent bills, the defendant cut off the supply
of water to the plaintiffs premises in October 2003 just before the
plaintiff could celebrate Deepavali. The plaintiff then lodged a
complaint with the Consumers Association of Penang (CAP). CAP then fixed
an appointment for the plaintiff to meet with the defendant's Director
of Corporate Services with regard to his problem. The said director then
informed the plaintiff in the presence of the CAP official that if he
would pay RM500 as the first installment payment in settlement of the
sum of RM3,047.02 he would order the re-connection of the water supply.
The plaintiff refused to accept the said suggestion.
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On October 22, 2003 the defendant again
examined the water meter at the plaintiffs premises and issued a meter
test certificate. The plaintiff averred that only he and his wife reside
at the said premises and that neither has used the water in excess and
that prior to this error, their bi-monthly bill had never exceeded RM25.
In spite of having sent a legal notice through his solicitors demanding
restoration of the water supply the defendant had failed and refused to
do so. The plaintiff related the sufferings he and his wife had
undergone without water and that they had to rely on the help of their
good neighbours for the daily supply of water. The plaintiffs affidavit
was supported by an affidavit from the CAP official confirming what the
plaintiff had related.
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The defendant filed an affidavit in reply
through it's Corporate Services Manager in which he averred that he has
personal knowledge of facts deposed to in the said affidavit. He averred
that on or about May 24, 1999 the defendant changed the plaintiffs
meter. The defendant had fixed two different types of meters to
different consumers' houses. One type of meter was called "one overflow"
whereby the meter reader would add a "0" to the number registered at the
time of reading. The other type of meter was called "two overflow"
whereby the meter reader would add two "00" to the number registered at
the time of reading the meter. Both the meters had a diameter of 1/2
inch PSM but the difference was in the "over flow". He alleged in his
affidavit that the meter fixed to the plaintiffs house had a "two
overflow" but the meter reader who read the meter from July 1999 to
September 2002 (during the period of dispute), had wrongly read the
meter as "one flow". Realising the mistake the defendant reviewed the
charges based on the previous readings and exhibited a table which was
not explained to the court.
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The meter reader who discovered this so
called erroneous calculations did not affirm any affidavit. The said
Manager of Corporate Services did not affirm how he obtained this
information since Mr. Rosli for the defendant had confirmed that the
said manager did not read the meter. There is no evidence or even any
satisfactory explanation as to why the meter reader had consistently
from July 1999 to September 2002 wrongly read the meter. If there was an
error for one month, it is understandable but the error was repeated
each month for 39 months.
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To my mind the defendant's lack of any
satisfactory explanation is a clear indicator that it does not know what
really happened and that the attempt by the defendant to cut-off water
supply was an oppressive act done with the intention of pressurising the
consumer into submission and to make the payment.
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Section 49(1) of the Enactment under which
the defendant acted by cutting off water supply to the plaintiffs
premises reads as follows:
49. |
(1) |
If any consumer who is liable to —
(a) |
pay for the water supplied; |
(b) |
pay for the cost of services
rendered in connection with the supply of water; or |
(c) |
pay any deposit under section
45, |
fails to settle the amount due within
fourteen days from the date of presentation fails to settle the
amount due within fourteen days from the date of presentation of
the bill, it shall be lawful for the licensee, if he so decides,
to disconnect the supply of water to such consumer by severing the
service pipe or by taking such other means as he thinks fit and
proper. |
The section allows the defendant to cut the
water supply OR by taking such other means as it thinks fit and proper.
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Since there is a provision for the defendant
to have taken a less drastic action by resorting to 'such other means as
it thinks fit and proper', I view this as an invitation to the defendant
to act as a reasonable man would. The defendant ought to have sued the
consumer in court and proved it's entitlement to the disputed sum. This
is all the more necessary when the defendant itself is finding it
difficult to show how the wrong readings had occurred. Surely the
consumer is entitled to an explanation as to how the wrong reading had
occurred.
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The draconian act of cutting off supply was
too harsh in the circumstances of this case. If the defendant is
entitled to only cut off water supply for non-payment the Act would not
have provided for the lesser alternative cause of action the defendant
could have resorted to. It must be understood that a public body endowed
with a statutory discretion in enforcing its rights must exercise such
discretion as would impose the least inconvenience to the public. It
ought not to act arbitrary or capriciously or unjustly. Nevertheless it
must not hesitate to act appropriately where drastic action is warranted
like when a consumer without any rhyme or reason refuses to settle his
bill.
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I therefore granted the plaintiff an order
in terms of his application.