JOHN NERIO P. FERNANDEZ, ERC CASE NO. 2011-177 CC …

Republic of the Philippines

ENERGY REGULATORY COMMISSION San Miguel Avenue, Pasig City

JOHN NERIO P. FERNANDEZ, Complainant,

-versus-

ERC CASE NO. 2011-177 CC

MANILA ELECTRIC COMPANY (MERALCO),

Respondent. x- - - - - - - - - - - - - - - - - - - - - - -x

DECISION

Before this Commission for resolution is a Verified Complaint filed by Complainant John Nerio P. Fernandez (Complainant) against the Manila Electric Company (Respondent) contesting the latter’s allegation of meter tampering and its demand for differential billing.

Statement of Facts

Complainant John Nerio P. Fernandez (Complainant) filed a Verified Complaint on 19 May 2011 against Respondent Manila Electric Company1 (MERALCO) for alleged erroneous meter reading and high billing, with a prayer for re-computation and refund for all the payments he made during the period from 24 August 2010 to 24 February 2011, amounting to Fifteen Thousand Three Hundred Twenty-six Pesos and Sixty-five Centavos (PhP 15,326.65).

The antecedent facts are as follows:

Complainant is the registered customer and actual user of the electric service provided by the Respondent MERALCO under Service Identification Number (SIN) 186279601 with service address at BES 5-A Basilan St., Malamig, Mandaluyong City.2 On 27 January 2011, Complainant lodged a complaint with the Respondent’s Mandaluyong Business Center contesting the high billing for his electricity consumption for the period from 25 December 2010 to 24 January 2011, amounting to Two Thousand Five Hundred Ninety-six Pesos and Ten Centavos (PhP 2,596.10).3

1 Duly represented by authorized officers of MERALCO. Respondent’s Comment/Answer (29 September 2011) attached Secretary’s Certificate. 2 Verified Complaint, page 1; Respondent’s Comment/Answer (29 September 2011), page 2, paragraph 8. 3 Respondent’s Comment/Answer (29 September 2011), page 2, paragraph 10; Complainant’s Position Paper, page 2, paragraph 2.

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ERC CASE NO. 2011-177 CC DECISION/07 July 2021 PAGE 2 of 10 ______________________________________________________________________________

On 28 January 2011, MERALCO’s field representative, Antonio Amorante,4 conducted a meter reading check and physical inspection of Complainant’s assigned meter with number 107BA288374.5 The inspection of the meter showed that it was in good physical condition with its terminal seal intact. The meter displayed an accumulated reading of 1444 kilowatt-hours and was compared to the previous reading of 1412 kilowatt-hours taken on 24 January 2011. No metering facilities alteration and no illegal service connection were found at Complainant’s metering facilities.6 Thereafter, Complainant’s representative, Resalyn Perdigiones, received a letter from the MERALCO on 10 February 2011, informing her and, therefore, the Complainant, of the inspection results and therein illustrating an analysis which shows that the disputed consumption during the period from 25 December 2010 to 24 January 2011 was within the range of Complainant’s previous monthly electricity consumptions.7 In the said letter dated 02 February 20118 to the Complainant, MERALCO showed the following analysis of the actual readings obtained from the meter of Complainant that his latest consumption is within the range of his usual monthly consumptions, to wit:

Date No. of Days Reading Consumption (kWh)

Consumption per Day (kWh)

Check Reading 01/28/2011 4 1444 32 kWh 8.00 kWh

Regular Reading 01/24/2011 31 1412 257 kWh 8.29 kWh

Regular Reading 12/24/2010 30 1155 265 kWh 8.83 kWh

Complainant first brought this matter before the Commission by filing a written complaint on 15 February 2011.9

On 24 February 2011, Engr. Isidro Raymundo B. Madrid (Engr. Madrid), duly authorized ERC representative, assisted by MERALCO’s field representatives, Engr. Roel B. Resano (Resano), Silvano T. Alcantara (Alcantara) and Raymond Buenaventura (Buenaventura), went to the service address of the Complainant to conduct an ocular inspection and meter accuracy test.10 In the said ocular inspection, MERALCO’s field representatives recorded an accumulated meter reading of 1562 kilowatt-hours, which allegedly validates the previous regular meter reading conducted on 24 January 2011.11 They took note of the condition of the meter, which was observed to be intact, and tested the service voltage which was found to be within normal range.12

4 Respondent’s Position Paper (12 January 2012), Judicial Affidavit of Antonio Amorante “Exhibit 1”. 5 Respondent’s Position Paper (12 January 2012), page 3, paragraph 2.5. 6 Ibid. 7 Respondent’s Position Paper (12 January 2012), Judicial Affidavit of Maria Capalad “Exhibit 4”. 8 Exhibit “3-A” of Respondent’s Position Paper. 9 Complainant’s Draft Decision (09 September 2013), page 2. 10 Respondent’s Position Paper (12 January 2012), page 4, paragraph 2.8. 11Respondent’s Position Paper (12 January 2012), Judicial Affidavit of Silvano T. Alcantara, page 1, paragraph 5 “Exhibit 7”. 12 Ibid.


ERC Engr. Madrid indicated in his Electric Watt-hour Meter Test Report No. 099067MA that the subject meter registered an accuracy of 98.89%.13 Thereafter, the subject meter was reinstalled on the meter base and resealed.14 MERALCO’s representatives explained to the Complainant the results of the test and the possible reasons for the increase in his electricity consumption. Complainant was unsatisfied, thus, at the suggestion of Engr. Madrid, the subject meter was replaced. MERALCO replaced the former electronic (digital) meter with an electro-mechanical meter.15 However, Engr. Resano explained to the Complainant that in view of the results of the inspection and meter accuracy test, MERALCO would be maintaining the amount billed.16

The Complainant later noted that his bills subsequent to the replacement of the electronic meter with an electro-mechanical meter, for the period from 24 February 2011 to 24 April 2011, show an average monthly consumption of only 50 kilowatt-hours.17 Thus, convinced that his previous bills under the electronic meter were erroneous, the Complainant filed before this Commission on 19 May 2011 a Verified Complaint18 alleging erroneous meter reading, high billing and a claim for billing adjustment with a prayer for re-computation and refund for payments made during the billing period from 24 August 2010 to 24 February 2011 amounting to Fifteen Thousand Three Hundred Twenty-six Pesos and Sixty-five Centavos (PhP 15,326.65).

On 27 May 2011, the Commission issued an Order19 setting the

case for Pre-Trial Conference on 12 July 2011. It also directed MERALCO to submit its answer within a period of fifteen (15) days from the receipt of the Order.

Hearings at the Commission were conducted on 12 July 2011, 01

September 2011, and 29 September 2011. Both parties agreed to terminate the pre-trial of this case and to proceed with the filing of their respective position papers by 16 December 2011.

On 29 September 2011, MERALCO filed its Answer.20 On 26 December 2011, MERALCO filed a Motion for Extension

of Time21 to file its position paper. On 09 January 2012, the Commission issued an Order22

directing the parties to submit their position papers within a period of fifteen (15) days from receipt of the Order.

13 Respondent’s Position Paper (12 January 2012), Electric Watthour Meter Test Report “Exhibit 5”. 14 Respondent’s Position Paper (12 January 2012), Judicial Affidavit of Silvano T. Alcantara page 1, paragraph 6 “Exhibit 7”. 15 Page 2 of the Respondent’s submitted Draft Decision, Page 4 of the Complainant’s submitted Draft Decision. 16 Respondent’s Position Paper (12 January 2012), Judicial Affidavit of Roel B. Resano, page 2, paragraph 9 “Exhibit 8.” 17 Annexes “I” and “J” and of the Complainant’s Position Paper. 18 Complaint, received at the ERC on 19 May 2011 and received at CAS-ERC on 20 May 2011. 19 Order, docketed on 27 May 2011. 20 Respondent’s Comment/Answer received on 29 September 2011. 21 Respondent’s Motion For Extension Of Time filed on 26 December 2011. 22 Order, docketed on 13 January 2012.


MERALCO and Complainant filed their respective Position

Papers on 12 January 201223 and 17 January 2012,24 respectively. On 16 November 2012, the Commission issued an Order25

directing the parties to submit a draft of the decision they seek, stating therein clearly and distinctly the facts and the law upon which it is based pursuant to Section 2.3 of Executive Order No. 26 series of 1992, within a period of sixty (60) days from the receipt of the Order.

On 15 August 2013, the Commission issued an Order26 directing

the parties anew to submit their draft decisions within a period of fifteen (15) days from the receipt of the Order, noting that neither of the parties complied with the previous Order.

On 09 September 2013, the Complainant filed his Draft Decision.27

On 24 October 2013, the Commission issued an Order28 declaring the case to be submitted for resolution and that MERALCO, by its failure to file its Draft Decision, has waived its right to file the same.

On 21 November 2013, MERALCO filed its Motion for Reconsideration with Motion to Admit the Attached Draft Decision for the Respondent.29

On 27 June 2014, the Commission issued an Order resolving to deny MERALCO’s motion.30

Discussion MERALCO was diligent in inspecting, maintaining, and ensuring that its meter does not malfunction

Distribution utilities are mandated by law to provide continuous, sufficient, and reliable distribution services and connections to their distribution systems for their end-users.

23 Respondent’s Position Paper received at the ERC on 12 January 2012. 24 Complainant’s Position Paper received at the ERC on 17 January 2012. 25 Order, docketed on 23 November 2012 with copies furnished to the Complainant, his counsel of record Atty. Julian C. Ilao and the Respondent. 26 Order, docketed on 16 August 2013. 27 Complainant’s Draft Decision. 28 Order docketed on 30 October 2020. 29 Respondent’s Draft Decision. 30 Order docketed on 01 July 2014.


As enunciated in the case of Ridjo Tape & Chemical Corp. v. Court of Appeals,31 MERALCO has the imperative duty to make a reasonable and proper inspection of its apparatus and equipment to ensure that they do not malfunction and is expected to exercise due diligence in discovering and repairing defects therein. Failure to perform such duties constitutes negligence.

The facts of this case show that the MERALCO was diligent in

performing its obligation towards the Complainant by acting swiftly on the allegation of overbilling due to a possible malfunction or defect of the electric watthour meter. In order to check the accuracy of its equipment installed in the metering facilities at the residence of the Complainant, MERALCO’s field representative conducted a meter reading and physical inspection of Complainant’s assigned meter immediately a day after a complaint was lodged by the Complainant with MERALCO’s Mandaluyong Business Center on 27 January 2011.32 The same due diligence and promptness of action was exhibited when the meter accuracy test was conducted soon after the written complaint was filed with the Commission.

The Complainant is not entitled to a refund

The bills in question are the following:33

Reading Date Bill Date Actual Reading

(kWh)

Consumption

(kWh)

07/20/2010 0

08/24/2010 08/24/2010 54 54

09/24/2010 09/24/2010 339 285

10/24/2010 10/24/2010 612 273

11/24/2010 11/24/2010 890 278

12/24/2010 12/24/2010 1155 265

01/24/2011 01/24/2011 1412 257

02/24/2011 1562 150 Complainant alleges that it was improbable for him to consume

such a huge amount of electricity because he was mostly away during the billing periods in question. However, no evidence was offered to support this claim. Likewise, the Complainant did not offer to show any computation or evidence showing overbilling.

What is apparent from the available evidence is that the subject

meter was found to be accurate at 98.89%. The results of the inspection also show that it was free from defects or contraptions that

31 G.R. No.126074 (24 February 1998). 32 Respondent’s Position Paper (12 January 2012), page 3, paragraph 2.5. 33 Annexes “A” to “F” of Complainant’s Position Paper, and Exhibit “9” of Respondent’s Position Paper


could have interfered with its normal function. The accuracy level of the said meter is within the average error of plus or minus two percent (+/-2%) as set forth under Section 35 (b) of Resolution No. 95-21, as amended by Article 2.11.5 of the Distribution Services and Open Access Rules (DSOAR).

It is noted that from 24 September 2010, when his watthour

meter already had a full month run, until 24 January 2011, the consumption pattern of Complainant did not vary greatly. Complainant’s mean average consumption was 271.6 kWh.

On the other hand, the mean absolute deviation (MAD) was only

8.48 kWh which is by no means significant.

By assailing the bills received by him, Complainant implies that either the meter itself is inaccurate or the readings are erroneous. This contention is not supported by facts. The accuracy tests performed by the engineers of MERALCO, the second of which was witnessed by the ERC’s Engr. Madrid, contradict the allegation of an inaccurate meter. While disputed by the Complainant, the findings are unchallenged by any proof to the contrary.

Section 5 of Rule 133 of the Revised Rules on Evidence states that:

Section 5. Substantial evidence. – In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.

The Supreme Court, in the case of LNS International Manpower Services vs. Padua,34 states that “bare and unsubstantiated allegations do not constitute substantial evidence and have no probative value.”

On Complainant’s allegation that the meter readings are erroneous, the same is unsubstantiated and runs afoul to logical thought. A watthour meter registers electricity consumption in a cumulative manner. Thus, even granting that a particular reading is erroneous, the subsequent consumption readings could only show the accumulated consumptions, and the sum would serve to correct any previous miscue.

There simply is no reason or condition to support a situation

where errors in meter reading perpetuate undetected over several months, and less so in the face of at least two (2) verifications conducted by the Respondent, one of which was participated by an ERC engineer.

34 G.R. No. 179792, March 5, 2010.


We shall now address Complainant’s allegation of high billing. The Magna Carta for Residential Electricity Consumers

(MCREC) provides, to wit:

“Article 32. Obligation to Pay Monthly Electric Bills x x x x B. High Billings Consumers are allowed to contest all instances of high billing

even if the entire amount of the bill has already been paid. High billing occurs when the consumer’s one (1) month kilowatthour consumption exceeds one hundred (100%) percent of his/her average 12-month kilowatthour consumption prior to the contested bill. (Emphasis supplied.)

x x x x

The DU shall, upon receipt of the complaint/protest, conduct an investigation thereof. Investigations into high billing complaints must be completed within thirty (30) days from filing of the complaint or protest.”

When the Complainant filed his Verified Complaint on 19 May

2011, his meter had been changed and his bill had gone down to an average monthly consumption of 50 kWh for the period from 24 February to 24 April 2011.35 However, these later bills were not the ones that first triggered his complaint. Complainant first complained on 27 January 2011, when his monthly consumption was within the mean absolute deviation (MAD) mentioned above.

To further support his claim that his previous bills were

erroneous, he attached the succeeding bills that show low consumption. Thus, because of these belated low consumptions, the Complainant is prompted to contest all his previous bills.

While curious and interesting, these subsequent bills showing

dramatically low consumptions could not be correctly used to support an allegation of high billing without running counter to the provision of the MCREC quoted above.

The second sentence in letter B quoted above allows a contest only

when the customer’s one month consumption exceeds one hundred (100%) percent of his 12-month kilowatt-hour consumption prior to the contested bill.

Therefore, the contested bill must be the later bill which must also

be at least one hundred (100%) percent higher than his 12-month average consumption.

35 Annexes “I” and “J” of Complainant’s Position Paper.


In this case, the Complainant did not contest his later bills but his previous bills – a situation which is diametrically opposite to that envisioned by the MCREC.

There is, however, wisdom why the MCREC does not include in its

provisions the contesting of previous bills under high billing, especially, in the situation akin to that of the Complainant where the meter was newly installed. Simply, there would neither be any basis nor reference that may be used in contesting the billing.

The fact that the bills incurred after the contested period and after

the filing of the complaint are remarkably lower, is irrelevant. Factors that affect how electricity is consumed vary along the march of time and the carrying on of human conduct. In the absence of proof, there is simply no way one can know how a customer consumes electricity in different times and in various conditions.

Faced with the unfathomed and the subjective, this Commission

stands by the standards that itself promulgated. For as long as the watthour meter is unaltered and remains sealed with an ERC seal by an ERC engineer, and tested and calibrated by an ERC-certified calibrating instrument, this Commission holds fast to whatever accuracy the meter is found. Such finding cannot be impugned by mere contrary allegations with no accompanying support.

There is, in the MCREC, a provision which must invite equal

attention along with the consumer’s right to contest bills. It is the provision of conclusiveness of bills unless overthrown by substantial controverting evidence. Letter A of the Article quoted above provides, to wit:

“A. Monthly Electric Bills Consumers must pay their bills not later than nine (9) days after receipt of the monthly bill. The bills must be based on consumption registered by their accurate electric meters. The said bills shall be conclusive between the parties, without prejudice to the rights and obligations of either party under any of the provisions of the Magna Carta.” (Emphasis supplied.)

The right of a distribution utility to get paid for electricity

consumed and services rendered is at par with a consumer’s rights. For as long as the meter is accurate, as in this case, a distribution utility shall be paid. This right of a distribution utility does not carry a reciprocal right for consumers to choose which bill to pay and which bill to disregard or contest.

The meter that registered the consumptions contested by the

Complainant was found accurate not only once, but twice. The accuracy was verified by a duly authorized engineer of this Commission.


On the other hand, the Complainant failed to present evidence that substantiates his allegations of erroneous meter reading and high billing sufficient or substantial to defeat the results of the above-mentioned tests, showing that MERALCO’s meter installed at Complainant’s premises was accurate and neither damaged nor defective.

We find no cogent reason to set aside said findings.

The Complainant’s prayer for refund of his payments from 24 August 2010 to 24 February 2011 amounting to Fifteen Thousand Three Hundred Twenty-six Pesos and Sixty-five Centavos (Php 15,326.65) is untenable. We investigated how it was derived and discovered that the amount represents the Complainant’s total consumption and not just an adjustment as we were led to believe.

“WHEREFORE, the foregoing premises considered, Complainant John Nerio P. Fernandez’s complaint against the Respondent for erroneous meter reading and high billing is hereby DISMISSED for lack of merit, and his prayer for re-computation and refund of payments is DENIED.

SO ORDERED.”

Pasig City, 07 July 2021.

AGNES VST DEVANADERA Chairperson & CEO

ALEXIS M. LUMBATAN Commissioner

CATHERINE P. MACEDA Commissioner

FLORESINDA G. BALDO-DIGAL Commissioner

MARKO ROMEO L. FUENTES Commissioner

jyb/glo/CAS


COPY FURNISHED:

1. John Nerio P. Fernandez BES 5-A Basilan St., Malamig, Mandaluyong City Atty. Rosalie T. Mazo-Atienza Public Attorney’s Office 3/F DSWD Rescue Center Building, City Hall Compound, Carucho Avenue, Pasig City

2. MANILA ELECTRIC COMPANY Legal Department Ortigas Avenue, Pasig City

Documents

JOHN NERIO P. FERNANDEZ, ERC CASE NO. 2011-177 CC …