ERC Case No. 2005-100CC_Samoy vs Meralco

8/19/2019 ERC Case No. 2005-100CC_Samoy vs Meralco

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•

MANUEL A. SAMOY, JR.Represented by JOHNJORIEL C. SAMOY,

Complainant,

-versus- ERC CASE NO. 2005-100CC

MANILA ELECTRIC COMPANY(MERALCO),

Respondent.) ( - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ) (

DECISION

Before this Commission is a verified Complaint filed by

complainant Manuel A. Samoy on 18 April 2005 against RespondentManila Electric Company (MERALCO for brevity), essentially foundedon the grounds of tampered meter and erroneous differential billingimposed against the complainant.

The instant Complaint sprang from the following factualantecedents:

Complainant is a resident of Lot 6, Block 9 Carolina Village,Sta. Cruz, Antipolo City.1 He is the registered customer of the

services of the respondent under Service Identification Number (SIN)586878401. 2 He is represented by his son, John Joriel C. Samoy, inthe instant case. 3 In the Complaint, complainant alleges that on 21March 2005, respondent's service inspectors arrived at the subjectpremises together with a certain SP01 Manuel T. of RSAU NCRPOto conduct an inspection of the complainant's subject meter. 4 Theservice inspectors claimed that a copper wire was inserted on theside of the electric meter. They also found a crack on the base of theelectric meter during the inspection. Complainant e)(plained that thecrack on the base of the electric meter was a result of theflogging/spraying of the Barangay's Task Force Tanod by the nameof b1enryAgapito. The service inspectors removed the subject electricmeter and replaced it with a new one. Complainant also claims thatwhen his wife, Mrs. Carmelita C. Samoy signed the Meter FacilitiesInspection Report (MFIR), no connected loads were indicated on th/

1 Complainant's Petition dated 18 April 2005. . q2 Respondent's Comment dated June 3, 2005 at p. 3. .3 Supra nofe 1.4 Ibid.


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ERC Case No. 2005-100CCDecision IOctober 29, 2015Page 2of9

form. 5 However, when their copy of the MFIR was delivered to themlater that day, the connected loads were already indicated on theMFIR.

On the following day, complainant's son, John Joriel C. Samoy,went to the MERALCO Head Office at Ortigas Ave. in the office of Mr.Enrique Gutierrez who indorsed him to an inspector who ordered himto submit a complaint. The complaint, however, was never actedupon. The next day, the complainant's son went back to the headoffice but was told to proceed to Masinag Branch Office. Upon goingto the said office, he was told to go to MERALCO Cainta Branch as itwas the office that handled the cases coming from Rizal. It was inMERALCO Cainta Branch that the complainant's son met the Branch

Manager, Mr. Jaime Garvida. Mr. Garvida informed him that the two(2) inspectors who went to the complainant's house are based on theSouth and that SP01 Manuel T. is from Taguig Station.

On 8 April 2005, complainant received a demand letter from therespondent indicating the following findings:

"The inspection of your metering installation on March 21,2005 yielded the following findings of our service

inspector: A piece of wire was inserted inside the meter touching themeter disc-tampered meter. ,, 6

The demand letter also indicated a differential billing in theamount of THREE HUNDRED FIFTY-THREE THOUSAND FOURHUNDRED SIXTY-FOUR PESOS & 85/100 (Php353,464.85)representing the unregistered electricity consumption of thecomplainant covering the period from 11 April 2000 to 21 March

2005. Complainant insists that the claim of the respondent that theyviolated pertinent provisions of Republic Act No. 7832 also known as An Act Penalizing the Pilferage of Electricity and Theft of ElectricPower Transmission Lines/Materials, Rationalizing System Loss byPhasing Out Pilferage Losses as a Component Thereof, and for other Purposes" has no factual or legal basis.

On 18 April 2005, complainant filed a verified complaint againstthe respondent before the Energy Regulatory Commission (ERC).

Respondent, on the other hand, claims that on 21 March 2005,respondent's service inspectors conducted a routine inspection of thesubject premises. The inspection was witnessed by the complainant'swife, Carmel ita Samoy, and an officer of the law, SP01 Teogenes O.Manuel, Jr.? During the inspection, the respondent's sear

'Ibid.

• Respondent's Demand Letter dated April 8, 2005.7 Meter Facilities Inspection Report No. 65384, attached as Annex "1" to the Respondent'sMemorandum.


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ERC Case No. 2005-100CCDecision IOctober 29, 2015Page 3 of 9

inspectors found a piece of wire inserted inside the meter touchingthe meter disc, causing it to stop even with full load. 8 They indicatedtheir findings on the MFIR and asked both the complainant's wife andthe officer of the law to sign the report in accordance with the law.

On 8 April 2005, respondent sent a demand letter to thecomplainant asking him to pay the differential billing in the amount of THREE HUNDRED FIFTY-THREE THOUSAND FOUR HUNDREDSIXTY-FOUR PESOS & 85/100 (Php353,464.85) representing theunregistered electricity consumption of the complainant covering theperiod from 11 April 2000 to 21 March 2005. The amount wascomputed by the respondent's billing analyst, Enrique Katipunan, inaccordance with the methodologies prescribed by R.A. No. 7832 and

under the Magna Carta for Residential Electricity Consumers.Complainant, however, refused and continues to refuse to pay thedifferential billing imposed against him.

Several pre-hearing conferences were conducted by theCommission which were intended to explore the possibility of anamicable settlement between the parties. These pre-hearingconferences, however, yielded negative results. Since the partiesfailed to reach a compromise agreement, the hearings were thusconducted under Summary Procedure set forth under Section 2, Rule17 of the ERC Rules of Practice and Procedure. Both parties wereasked to submit their Position Papers and/or Memoranda. Uponsubmission, the case was submitted for resolution.

Taking the parties' respective memorandums, evidence, and.contentions altogether, the issues which this Commission is called toresolve can be refined as follows:

I.

WHETHER OR NOT COMPLAINANTVIOLATED REPUBLIC ACT NO. 7832 ORTHE "ANTI-ELECTRICITY AND ELECTRICTRANSMISSION LINES/MATERIALSPILFERAGE ACT OF 1994".

II.

WHETHER OR NOT COMPLAINANT IS

LIABLE TO PAY THE DIFFERENTIALBILLING IMPOSED AGAINST HIM IN THE AMOUNT OF THREE HUNDRED FIFTY-THREE THOUSAND FOUR HUNDREDSIXTY-FOUR PESOS & 85/100(Php353,464.85). ~

8 Respondent's Pre-Trial Brief dated March 21, 2006 at pp. 1-2.


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I " \


Complainant did notviolate R.A. No. 7832

Complainant insists that he did not violate RA No. 7832because the process of inspection of the electric meter was taintedwith illegality. First, the inspection was conducted in the presence of an officer of the law who does not have jurisdiction over the area of Rizal. Second, the connected loads indicated on the MFIR werefabricated by the inspectors as the connected loads were only writtenon the form after the MFIR was already signed and delivered to themby the respondent. Third, the crack on the base of the electric meter was a result of the spraying of the Barangay's Task Force Tanod bythe name of Henry Agapito.

Respondent, on the other hand, insists that there is a violationof R.A. No. 7832 as evidenced by the tampered meter and that theinspection was conducted in accordance with the law. Respondentpresent several pieces of evidences such as the MFIR, S.1.Computation Worksheet,9 Outright Disconnection Form,10 andService Billing History,11 to prove the existence of a tampered meter.Further, respondent contests the personality of the complainant'sson, John Joriel C. Samoy, to file the instant case as he is not theregistered customer and was not able to prove that he was dulyauthorized to represent the registered customer.

On this point, we find for the complainant Manuel A. Samoy, Jr.

Respondent failed to provide sufficient evidence to refute theallegations of the complainant. It did not present any laboratory testresults conducted by either the respondent or the ERC to determinewith finality the existence of a tampered meter. It also did not presentphotographs or even the wire itself to prove their allegations against

the complainant. The respondent merely relied on the MFIR, which isbeing questioned by the complainant as to the authenticity of theconnected loads, and the service bill history to show the existence of a tampered meter. Also, even if it is highly improbable that the crackon the base of the electric meter was caused by the flogging/sprayingof the Barangay's Task Force Tanod by the name of Henry Agapito,the respondent still needs to show the existence of such. In caseswhere the complainant is contesting the validity of the findings of therespondent, it is the burden of the respondent to prove the existenceof a tampered meter. It cannot rely on documents such as the MFIRor affidavits to prove such existence as these documents are self-serving.Furtherproofis requiredto substantiatetheir finding~

9 S.1.Computation Worksheet, attached as Annex "A" to the Respondent's Memorandum.10 Outright Disconnection Form, attached as Annex "B" to the Respondent's Memorandum.11 Service Bill History, attached as Annexes "C" and "C-1" to "C-6" to the Respondent'sMemorandum.


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As to the other contention of the respondent, it must be madeclear that complainant's son has the requisite personality to act asrepresentative of the complainant. First, it is the complainant, Manuel

A. Samoy, Jr. himself who filed the complaint before the ERC asevidenced by his signature on the ERC pro-forma complaint filed on18 April 2005. Second, complainant executed a Special Power of

Attorney on 13 April 2005 appointing his son, John Joriel C. Samoy,as his attorney-in-fact with respect to the instant case. It is clear thatthe complainant's son has the requisite standing to act on behalf of his father, the complainant and the registered user of therespondent's services.

Further, respondent MERALCO failed to discharge its duties

properly as the inspection of the complainant's electric meter was notdone in compliance with the Terms and Conditions of Service and inaccordance with the law. Section 4 of RA No. 7832 states:

SEC. 4. Prima Facie Evidence. -

(a) The presence of any of the following

circumstances shall constitute prima facieevidence of illegal use of electricity, asdefined in this Act, by the person benefitedthereby, and shall be the basis for: (1) theimmediate disconnection by the electricutility to such person after due notice,

xxx

(iv) The presence of a tampered, broken, or

fake seal on the meter, or mutilated, altered,or tampered meter recording chart or graph or computerized chart, graph, or log.

xxx

(viii) x x x Provided, however, That thediscovery of any of the foregoingcircumstances, in order to constitute primafacie evidence, must be personallywitnessed and attested to by an officer of the law or a duly authorized representativeof the Energy Regulatory Board (ERB).


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Under the law, there is prima facie evidence if the discovery of a tampered, broken, or fake seal on the meter is witnessed by anofficer of the law or a duly authorized representative of the EnergyRegulatory Commission (ERC). With such prima facie evidence onrecord, only then can MERALCO immediately disconnect theelectrical service of the consumer after due notice. This rule wasreiterated in the case of MERALCO VS. Spouses Chua and Paqueo. 12

In the instant case, the complainant was contesting the authority of the officer of the law to be a witness to the conduct of the inspectionfor lack of authority within the jurisdiction of Rizal. It behooves therespondent to prove that the authority of the officer of the law existedas the presence of a valid officer of the law is mandatory indetermining a prima facie existence of a tampered meter. Under

Section 1, Rule III of the Rules and Regulations Implementing RA7832 (IRR), an officer of the law is defined as one "who, by directsupervision of law or by election or by appointment by competentauthority, is charged with the maintenance of public order and theprotection and security of life and property, such as barangay captain,barangay chairman, barangay councilman, barangay leader, officer or member of Barangay Community Brigades, barangay policeman,PNP policeman, municipal councilor, municipal mayor and provincialfiscal. "

A perusal of the MFIR shows that the inspection was allegedlywitnessed by SP01 Teogenes O. Manuel, Jr. Respondent, however,did not present SP01 Manuel during the hearing nor submit anyaffidavit executed by him to attest to the conduct of the inspection.Second, even if the presence of SP01 Manuel was proven, theHonorable Commission still cannot consider him as a valid witnessunder the law in the absence of an affidavit executed by him or histestimony during the hearings. The reason for this necessity isbecause Antipolo City is not within the jurisdiction of SP01 Manuel as

he is allegedly from Taguig City. An officer of the law, to beconsidered as a valid witness to an inspection, should be actingwithin his assigned territory. This has been emphasized by theSupreme Court in previous cases. In the case of Manila ElectricCompany VS. Santiago, the Court held that it is "wary of imputinglegitimacy or regularity to the acts of P02 Chavez, who allegedlywitnessed and attested to the conduct of the inspection atrespondent's house, since he is a police officer of Caloocan City andnot Bulacan. Police officers must act only within their assignedterritory.,,13 This bears similar circumstances to the instant case asthe alleged witness, SP01 Manuel, is not based in Antipolo Citywhere the subject premises is located, but rather in Taguig City.SP01 Manuel therefore cannot be considered as a proper witness asan officer of the law because Taguig City is not within his jurisdictionor assigned territory. ~

12 Manila Electric Company (MERALCO) VS. Spouses Chua and Paqueo, G.R. No. 160422, July5,2010.13 Manila Electric Company vs. Santiago, G.R. No. 170482, September 4,2009.


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ERC Case No. 2005-100CCDecision {October 29, 2015Page 7 of 9

Based on the foregoing reasons, the respondent failed to provethe existence of a tampered meter. It also failed to discharge its dutyin proving that the conduct of the inspection was done in accordancewith the law. Its failure to establish the presence and authority of theofficer of the law who witnessed the conduct of the inspection is fatalto its cause. Hence, complainant cannot be held liable to haveviolated the pertinent provisions of R.A. No. 7832.

Complainant isnot liable to paythe amount of

Php 353,464.80.

The records presented sustains the conclusion thatcomplainant Manuel A. Samoy, Jr. is not is liable for the sum of THREE HUNDRED FIFTY-THREE THOUSAND FOUR HUNDREDSIXTY-FOUR PESOS & 85/100 (Php353,464.85) which representsthe value of electricity actually consumed by the complainant but notregistered in the electric meter covering the period from 11 April 2000to 21 March 2005.

Respondent's billing analyst, Enrique E. Katipunan, attested tothe computation of the THREE HUNDRED FIFTY-THREETHOUSAND FOUR HUNDRED SIXTY-FOUR PESOS & 85/100(Php353,464.85). The computed electric bills from 11 April 2000 to 21March 2005 is FIVE HUNDRED FIFTEEN THOUSAND NINEHUNDRED SEVENTY-TWO PESOS & 75/100 (Php515,972.75)using 1600 kWh as the basis for electric usage. Meanwhile, the totalamount of the electricity bills before the discovery of the allegedtampered meter covering the same period is ONE HUNDRED SIXTY-

TWO THOUSAND EIGHT HUNDRED FIFTY-SEVEN PESOS &90/100 (Php162,857.90). The differential billing, therefore, amounts toTHREE HUNDRED FIFTY-THREE THOUSAND FOUR HUNDREDSIXTY-FOUR PESOS & 85/100 (Php353,464.85).

However, in light of the violation of due process in the conductof inspection and in the absence of any convincing evidencesupporting the allegation that complainant violated R.A. No. 7832,complainant cannot be held liable to pay the differential billing in theamount of THREE HUNDRED FIFTY-THREE THOUSAND FOURHUNDRED SIXTY-FOUR PESOS & 85/100 (Php353,464.85)imposed against him by the respondent MERALC~


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ERC Case No. 2005-100CCDecision !October 29, 2015Page 8 of 9

Wherefore, premises considered, the Commission finds thatthe complainant Manuel A. Samoy, Jr. did not violate R.A. No. 7832also known as "An Act Penalizing the Pilferage of Electricity and Theft

of Electric Power Transmission Lines/Materials, Rationalizing SystemLoss by Phasing Out Pilferage Losses as a Component Thereof, andfor other Purposes."

Complainant therefore cannot be held liable for the differentialbilling in the amount of THREE HUNDRED FIFTY-THREETHOUSAND FOUR HUNDRED SIXTY-FOUR PESOS & 85/100(Php353,464.85).

SO ORDERED.

Pasig City, 29 October 2015.

JOS~ V 7 c O O E B . S:L9R

Chairperson 7"

G~~Ret. YAP-TARUC

commissi~er

JOSEFINA PAT~f-. MAGPALE-ASIRIT

c~~~:~ner

Copy Furnished:

1. Manila Electric Company, Inc.(MERALCO)Ortigas Avenue, Pasig City

2. Manuel A. Samoy, Jr.89 L6 Carolina VillageSta. Cruz, Antipolo City

~

ALFREDO~N

Commissioner

G RONIMO

D. STA. ANA

Commissioner


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ERC Case No. 2005-100CCDecision /October 29, 2015Page 9 of 9

3. Atty. Antolin V. OlivanOliva Oliva Law OfficesMezzanine Floor, Diamond Theater Bldg.Saint Mary cor. Aurora Blvd.Cubao.QuezonCi~

Documents

ERC Case No. 2005-100CC_Samoy vs Meralco