Prove, to collect
NST-PROP 17/4/2004

Those who have made payments to Indah Water Konsortium Sdn Bhd (IWK) but have not received any sewerage services can demand refunds. This is the opinion of several lawyers, based on a recent judgment by the High Court sitting in Ipoh, Perak, that went against the national sewerage services company.

Simply put, lawyer Ngeh Koo Ham who represented the plaintiff in the matter against IWK said the sewerage company has to prove that it did provide a service to the consumer from whom it is making a demand for payment.

Most consumers, he said, do not have a contract of service with IWK, like they do with Syarikat Telekom Malaysia Bhd for telephone service or with Tenaga Nasional Bhd for power supply. This absence of a service contract requires the company to provide proof that service was indeed rendered.

Ngeh, together with another lawyer Nga Hock Cheh, appeared for Sitiawan businessman Yong Kon Fatt, 54, who was sued by IWK in January last year for refusing to pay RM1,074 for sewerage services purportedly provided to his house at Taman Samudera in Lumut.

Yong applied to strike out the claim but this was dismissed by the Sitiawan magistrate?s court. Yong then appealed to the High Court, which on March 30 this year ruled that he need not pay the bill because IWK
failed to prove that it had provided the sewerage services it was
demanding payment for.

In dismissing IWK?s suit against Yong, Justice Datuk V.T. Singham said IWK?s failure to file an affidavit in reply to Yong?s application was fatal and because of this, IWK was deemed to have admitted Yong?s assertion that it did not render services to him.

Furthermore, he said IWK was obliged to provide the basis of calculation for the charges imposed on Yong, but it failed to do so in its statement of claim.

Singham said while IWK?s omissions did not make its claim invalid in law, it is obliged to provide evidence to sustain its claim, if this is challenged or disputed.

Ngeh told PropertyTimes that while this ruling may not apply to owners
of houses in the newer housing estates where sewerage is piped to a common treatment facility that is maintained by IWK, the company nevertheless has to provide the owners with itemised bills, specifying how the charges were derived.

He said there have been reports in the past about IWK getting house owners to sign a document requesting for its service, and about IWK making threats of cutting off water supply and commencing lawsuits if its bills were not settled.

Owners who suffered such treatment could take steps to nullify such agreements on grounds that they were misled, while those who have paid money to IWK without getting any service in return could demand the refund of their money.

Once the responsibility of local authorities, sewerage services nationwide were privatised to IWK in April 1994. However, in June 2000, the Minister of Finance Inc took over the entire equity of the company from its private owners.

IWK is tasked with providing sewerage services, operating and maintaining over 7,500 public sewage treatment plants, networks of sewerage pipelines that exceed 13,000km and providing desludging services to over 350,000 individual septic tanks in Malaysia.