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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:
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(a)
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a mandatory interim injunction preventing
the defendant or its servant or agent from cutting off the water
supply to the plaintiffs premises;
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(b)
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the costs of re-connecting the water
supply to be borne by the defendant;
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(c)
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costs.
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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:
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49.
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(1)
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If any consumer who is liable to —
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(a)
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pay for the water supplied;
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(b)
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pay for the cost of services rendered
in connection with the supply of water; or
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(c)
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pay any deposit under section
45,
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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.
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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.
