Examples Of Supreme Court Decisions Regarding The Bank’s Liability For Unauthorized Withdrawals Following ATM Card Jams
T.C.
COURT OF CASSATION
19th CIVIL CHAMBER
E. 2016/6483
K. 2017/467
T. 25.1.2017
Following the trial of the claim for payment between the parties, the judgment accepting the claim for the reasons stated in the decision was appealed by the defendant’s attorney within the prescribed time limit.
The case file was reviewed, and the necessary deliberations were made.
DECISION: The plaintiff’s attorney stated that his client was a customer of the defendant bank, that on 07.03.2013, while attempting to withdraw money from an ATM,
his card was retained by the machine, that he immediately went to the bank branch, but learned that 3,350.00 TL had been withdrawn from his account, that there were no security cameras around the ATM,
that that the bank had no daily withdrawal limit, that the bank was at fault in the incident, that a letter of demand was sent to the defendant bank to remedy the damage, but that no payment was made.
He requested and filed a lawsuit for the defendant to pay 100 TL, plus discount interest from the default date of March 18, 2013.
The defendant’s representative requested that the case be dismissed, stating that the ATM card holder is obligated to protect and store the ATM card and information related to its use from the moment the contract with the bank is signed or the card comes into their possession, that the necessary warnings are displayed on the ATM screen in case the card gets stuck in the ATM, and that it was necessary for the plaintiff to protect their bank card and information and not to leave it unattended. and that the plaintiff was at fault, requesting that the case be dismissed.
According to the trial conducted by the court, the evidence gathered, and the expert report adopted, the defendant bank failed to take measures to prevent easy interference with and tampering of ATM devices and failed to fulfill its objective duty of care, making it 80% at fault, while the plaintiff was 20% at fault for violating his obligation to protect and safeguard his bank card and for notifying the bank late.
The court therefore ruled in favor of the plaintiff,
and the defendant’s attorney appealed the decision.
The lawsuit is a claim for compensation for damages arising from a banking transaction. The plaintiff claimed that the ATM card issued by the bank was confiscated by the ATM machine in front of … Market,
that he reported this to the bank branch, but that 3,350 TL was withdrawn from his account without his knowledge,
and sought compensation for the damages. Banks are institutions of trust. They are liable for the entire loss due to even the slightest fault
against the depositor. In the specific case, although the court accepted that the card was retained by the ATM machine and decided to accept the case, the material facts alleged by the plaintiff have not been clarified. Furthermore, the expert who prepared the expert report on which the judgment was based did not have technical knowledge,
and therefore the report could not be reviewed by the Court of Cassation. It was necessary to obtain a report from a new expert witness with technical knowledge, evaluate the evidence regarding whether the bank was liable, and decide based on the outcome.
Ruling in writing based on an incomplete investigation was incorrect, and the court’s decision must be overturned.
CONCLUSION: For the reasons explained above, it was unanimously decided on 01/25/2017 to REVERSE the ruling and to request the return of the advance payment if requested.