General Assembly Of Law
Base Number: 2017/2850
Decision Number: 2019/154
“Case Law Text”
Court :Consumer Court
At the end of the trial due to the “compensation” case between the parties, Istanbul 3.Dec. Dated 20.06.2013, 2009/1019 E. issued by the Consumer Court on the partial acceptance of the claim for material compensation and the rejection of the claim for moral compensation., 2013/688 K. Decision No. 13 of the Supreme Court on the appeal of the attorney of the plaintiff and the defendants … and the attorney of Murat Dogan. Law Department dated 12.06.2014, 2013/32840 E., 2014/18798 K. by numbered decision;
“…The plaintiff, the defendant 14.03.2005 from the Bank of the credit card was stolen while you’re traveling in the van, then the defendant and the situation in writing to the bank by phone at the hour 14.43 credit card, reporting …with the defendant’s run …from the nuts of the nature of the defendant before the defendant had been made because the shopping is done 4.000 TL notification that reported that the bank could not meet this amount, the defendant undertaking responsibility of the Bank of the credit card theft and you’d only 750 TL even though it is not a flaw in the use 3.275-TL, the defendant had to pay to the bank, claiming that the other defendant …was tried in the criminal court and punished for fraud because of this action, the defendants had joint and fiduciary responsibility,and asked that a total of 3,420, 30-TL and 5,000-TL moral compensation, including the cost of warning, be jointly and severally collected from the defendants.
The defendant bank stated that the transaction took place at 14.39 am, 4 minutes before the plaintiff’s notice, the 19th of the contract. he dismissed the case, arguing that he had no responsibility for the expenses before the notice reached the bank.
The defendant … and Murat Dogan asked for the dismissal of the case, arguing that it was a routine exchange, that they had no flaws, that the plaintiff was responsible for not carefully hiding his credit card.
By the court, the defendant in a case against the bank, denial, and with the acceptance of the case against the other defendants Murat Dogan partial 1.645,30-TL interest accruals together with interest from the date of the lawsuit the defendants, jointly and severally taken, and given to the plaintiff to be more prompt and non-pecuniary damages, it was decided to refuse the request for judgment, the plaintiff and the defendants and was appealed by Murat Dogan.
1-due to the articles in the file, the evidence on which the decision is based, the necessary reasons in accordance with the law, and in particular the lack of a hit in the discretion of the lunatics, the defendants … and Murat Dogan all other appeals that fall outside the scope of the plaintiff’s following Bend should be rejected.
2-the credit card of the plaintiff, in violation of the law asserts that the expenditure is not responsible for the use by third parties due to the defendant’s due diligence in the protection and storage of passwords, credit card information and has not been shown, stating that the bank is not responsible for stolen incurred prior to the notice, the plaintiff argued that the expenditure must be responsible. Akbank Axess credit card, of which the plaintiff is the owner, was stolen on 14.03.2005, the defendant notified the defendant of the theft at 14.43, and the subject of the case is fixed with the scope of the file, where the 4,000-TL purchase was made at 14.39.
In order to resolve the dispute between the parties, the provisions of the “bank cards and credit cards Law”No. 5464 must be decried.
15, titled “obligations of cardholders”. “the responsibility arising from the use of the card belongs to the card bearer from the moment the contract is signed and the card is passed to his possession or the card number, which does not have a physical presence, is learned.”
Entitled “notification obligation”, 16. “if the card holder requires the use of a code number, password or other method of identifying the card deposited with him, the card holder must immediately notify the card issuer if he finds out about the loss, theft or any transaction that occurred against his will.”
12, titled” unfair use and insurance of the card.” “if the card or the information referred to in Article 16 is lost or stolen, the card holder is liable for damages arising from illegal use that occurred within twenty-four hours before the notification that he will make, limited to the new Turkish Lira. This limit does not apply in cases where illegal use is based on gross negligence or caste of the holder or if the notification is not made.”there are provisions.
Again, the credit card agreement between the parties, 19 Dec. “if the credit card is lost, stolen or corrupted in such a way that it cannot be used, the member or additional card holder is obliged to immediately notify the bank by phone and then confirm October in writing. Notice of this credit card, password or credit card number using an additional card members belongs to the holder all liability arising from transactions and the notification of the credit card receipt from the bank to the bank to be deactivated is required for domestic and overseas after a reasonable period of your credit card for use with 3. members and additional card holders cannot be held responsible for transactions to be performed by persons October.”the arrangement is available.
As can be seen, the credit card holder is obliged to protect and store the credit card deposited with him in accordance with the said law from the moment he signs a contract with the bank and the card passes into his possession, as well as the information related to the use of this card. However, in accordance with law 5464, the credit card or in the event of loss or theft of this information is liable for damages arising from illegal use that occur within twenty-four hours before the notification to the bank, unless there is gross negligence or November intent, limited to one hundred new Turkish Lira. 12 of the law in this case. the substance must be evaluated according to the characteristics of each concrete event. In a concrete case, it is understood that the plaintiff fulfilled his obligation to notify the defendant bank, that the $ 4,000 purchase made 4 minutes before the notification was made by signing the slip, and that the signature on the slip did not belong to the plaintiff. It cannot be said that this illegal expenditure was based on gross negligence and caste of the plaintiff. Because the plaintiff stole his card while traveling in the van, and there is no claim or evidence in the file that there was negligence that would facilitate the theft of the card. According to the usual course of life, it is not possible for the plaintiff to check his credit card by constantly opening his wallet while traveling in the van. Again, the exchange is made with a signature thrown into the slip, as well as the plaintiff’s password, etc. it also shows that it protects its information securely. As such, the plaintiff’s Law No. 5464 is 12. according to the article, The Bank must accept that it is liable for damages caused by this illegal use, which occurred within twenty-four hours before notification, limited to one hundred new Turkish Lira. Other defendants cannot be prosecuted against the plaintiff on the grounds described. The court decided to dismiss the case from the bank’s point of view in writing on the grounds that the plaintiff’s password was reached in a short time by misjudgment and contrary considerations, the password was not selected or stored securely, the plaintiff did not check whether the card was in his wallet, he allowed the card to be stolen by carelessness, so it was severely defective, and the ½ percent discount from the other defendants is against the procedure and law and is the cause of violation…”
at the end of the retrial, which was overturned on the grounds that the file was rejected instead, the court resisted the previous decision.
Appellants: 1-acting plaintiff
2-defendants … and Murat Dogan’s deputy
DECISION OF THE GENERAL ASSEMBLY OF LAW
The law was examined by the General Assembly and after it was understood that the decision to resist was appealed during the period and the documents in the file were read, the requirement was discussed:
The case is about a claim for damages.
The plaintiff’s Attorney, his client owned by Akbank Axess credit card on 14.03.2005 time 14:00-14:30 trucker highway between Ankara-Maltepe between the path it was stolen while travelling in the van, as soon as we became aware of the situation, the situation 14:43 at the bank reported reported stolen in the same order that the defendant …’s owned by the other defendant …’s run 4.000 TL Içerenköy arising from the nuts of the shopping is done, in spite of this, only 750tl that are undertaken by the bank and the balance of the expenditure will be paid by the client in the event, if it stays from the defendant …’s Kadıköy 2. By the decision of the Heavy Criminal Court dated 24.11.2005, he received a conviction for fraud by passing the unfairly seized credit card through the pos device at work and editing fake documents such as shopping, the defendant also know to be stolen bank card spending unfair that people who commit crimes like it had never been reported stolen, arguing that failing to refrain from paying compensation to be paid is flawed and is responsible with the money that was 5,000 to 40% of total compensation of protest and deny 145,30 TL 3.420 with a cost of $ 30 to monetary damages from the defendant’s decision to demand and the collection has prosecuted jointly and severally.
