SUMMARY: In the event of withdrawal of money from the ATM without the knowledge and consent of the account holder, it should be accepted that the bank, which is a trust institution, which is not the fault of the account holder, cannot fully ensure the security of the money in the deposit account, and at this point, it is responsible even for its slight fault and in this context, the bank is responsible for all the damages of the account holder.

11th Civil Chamber of the Court of Cassation

E.2020/249 K.2020/4036 T.13.10.2020

The plaintiff's attorney stated that although his client had the debit card related to his account at the defendant bank, cash withdrawals in the amounts of 1.500 TL and 500 TL were made from the ATM of the defendant bank on 10/09/2013 without his knowledge and consent, and also a transfer of 3. 000 TL, upon being informed about the transaction with the information message sent by the bank to his client's phone, the customer service was called and the card was canceled, the defendant bank was applied to the defendant bank for the return of the money withdrawn without his knowledge and consent, claiming that the card used by the people who withdrew money from the bank branch was created fraudulently for fraudulent purposes, and demanded and sued for the collection of 5.000 TL from the defendant together with the advance interest as of 12.09.2013.

The defendant's attorney argued that his client had no responsibility, that no card copying devices were found in any of the ATMs used by its customers, that the defendant's banking transactions were carried out with globally accepted security systems applications, that the plaintiff did not fully fulfill his responsibility, and that he did not keep the card information properly, and requested a decision to dismiss the lawsuit.

The court, by complying with the reversal order of our chamber and according to the entire file scope, the money withdrawn with irregular transactions is actually directly in the nature of the bank's loss, the depositor's receivable against the bank continues as it is, if it is proved in the realization of irregular transactions, it can be mentioned about the mutual fault of the depositor, in the case in question, the plaintiff's bank card was copied, it is not possible to attribute a mutual fault to be attributed to the plaintiff, On the grounds that the defendant bank, as a trust institution, could not fully ensure the security of the money in the deposit account, could not protect it against the transactions of malicious persons, did not develop effective mechanisms and security measures to protect it against the actions and transactions of these persons, and for this reason, the defendant bank is responsible for all of the damage caused by its inability to prevent irregular transactions and is responsible for even slight defects arising from the failure to fulfill the objective duty of care, the defendant bank is responsible for all of the damage caused by the acceptance of the lawsuit, and it was decided to accept the lawsuit and to pay 5. 000,00 TL from the defendant together with the advance interest at varying rates as per Article 2/2 of the Law No. 3095 as of 12.09.2013 and decided to be paid to the plaintiff.

The decision was appealed by the defendant's counsel.

According to the writings in the file, the fact that the court has ruled in accordance with the reversal decision and that there is no error in the evaluation of the evidence, all the appellate objections of the defendant's attorney are not appropriate.

CONCLUSION

For the reasons explained above, it was unanimously decided on 13.10.2020 to reject all the appellate objections of the defendant's attorney and to APPROVE the judgment, which is in accordance with the procedure and the law, and to charge the appellate judgment fee of 297,15.- TL from the appellant defendant.