Examples Of Supreme Court Decisions Regarding The Bank’s Liability For Unauthorized Withdrawals Following ATM Card Jams
Republic of Turkey
COURT OF CASSATION
11th CIVIL CHAMBER
E. 2016/4862
K. 2017/3347
T. 5.6.2017
In the case heard between the parties … 5th Commercial Court of First Instance, in compliance with the reversal
dated 15/10/2015 and numbered 2014/925-2015/813 was requested by the defendant’s representative and it was understood that the appeal petition was submitted within the time limit, and after the report prepared by the After hearing the report prepared by the Examining Judge … and reading and examining the petition, pleadings,
hearing minutes, and all documents in the file, the matter was discussed and considered:
DECISION: The plaintiff’s representative stated that his client had an ATM card linked to his account with the defendant …
On Sunday, November 2, 2008, while attempting to use the defendant …’s ATM card at another defendant …
branch of the defendant …, where the defendant’s ATM card could also be used, the card was blocked. The next day, the client checked the account with another card belonging to the same account
and saw that money was missing. The client claims that the defendants failed to provide the necessary security and that the loss due to the theft of the card is 3,100.00 TL and requested a decision ordering the defendants to pay this amount, together with the advance interest applied to short-term advances from 03.11.2008.
The representative of the defendant … raised an objection to the dispute, stating that the client had disclosed or had the PIN of the card stolen by third parties
The attorney for the defendants objected to the dispute, arguing that the plaintiff was at fault for
disclosing or allowing third parties to steal the card’s password along with the card itself and for failing to report this to the client bank in a timely manner, and requested that the case be dismissed.
The other defendant’s representative argued that, according to security camera footage, the plaintiff told the person who came to his aid when his card got stuck the PIN, that the person tried to help the plaintiff, that the plaintiff left the ATM when they were unsuccessful,
and that an unidentified person then came and took the plaintiff’s card
and left, and that the plaintiff did not take care to conceal his PIN, requesting that the case be dismissed.
In compliance with the reversal ruling and based on the entire case file, the court found that:
When the plaintiff attempted to use his ATM card at the … Bank ATM for his deposit account held at the defendant … Bank,
the card was left in the … Bank ATM, the plaintiff subsequently spoke with third parties to retrieve the card, but
could not retrieve it, and after leaving the ATM, the card was removed from the ATM by third parties and used at … Bank
and money was withdrawn from the plaintiff’s account. According to the expert report, the plaintiff
is 10% responsible for the damage incurred, … Bank is 20% responsible, and … Bank is 70% responsible.
In terms of their liability, the defendants are liable for compensating the plaintiff for damages in the amount of 3,100.00 TL.
Since the deposit was not commercial, legal interest should be applied. Therefore, the case was partially accepted,
and it was decided that the defendant … would be liable for 2,170 TL of the 2,790 TL, and … Bank would be liable for 620 TL,
to be collected from the defendants with legal interest from 03/11/2008 and paid to the plaintiff.
The defendant’s representative appealed the decision.
Considering the documents in the file, the fact that the judgment was rendered in accordance with the reversal decision followed by the court, and that there is no inaccuracy in the assessment of the evidence, all of the defendant’s representative’s appeals are unfounded.
CONCLUSION: For the reasons explained above, all appeals of the defendant’s representative are rejected,
the ruling is upheld as being in accordance with procedure and law, the remaining appeal fee of 100.58 TL is to be collected from the appealing defendant, and it was unanimously decided on 06/05/2017.